At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONOURABLE MR. ASHOK JINDAL
By, MEMBER (JUDICIAL)
For the Appellant: Krishna Kumar, Advocate. For the Respondent: M.S. Reddy, DC (AR).
1. The appellant is in appeal against the observation made in para 12 of the impugned order.
2. The brief facts of the case are that M/s. UPS Jetair Express P. Ltd., Mumbai filed one bill of entry in the name of the appellant as importer wherein the goods were found to be liable for confiscation and same were confiscated and allowed to be redeemed on payment of fine along with penalty on the appellant. When the said order of adjudication was received by the appellant, the appellant was shocked as they have not imported any consignment through M/s. UPS Jetair Express. Therefore they filed an appeal before the Commissioner (Appeals) on the premise that as they are not the importer and somebody has played a fraud by using their name in importing the impugned goods and therefore penalty be waived. The Commissioner (Appeals) passed the following order:
In view of the facts and circumstances of the instant matter as detailed earlier, the penalty of Rs.5000/- imposed on the appellant importers is set aside, without prejudice to taking further action against them, if necessary, and if found that they have also connived/colluded in the fraud committed in this matter, on conclusion of the investigations directed above.
The appellant is aggrieved from the part of the order that without prejudice to taking further action against them, if necessary, and if found that they have also connived/colluded in the fraud committed in this matter, on conclusion of the investigations directed above. Therefore, the appellant is in appeal before me.
3. The counsel submits that as appellant as not imported the consignment and somebody else has played a fraud by using their name, the Commissioner has accepted their contention and arrived at a decision that the penalty is not imposable on the appellant. Therefore, the Commissioner (Appeals) has exceeded his jurisdiction by making the observation that action be taken against the appellant if they found have connived/colluded in the fraud in the matter.
4. Heard the counsel and perused the order.
5. As the ld. Commissioner (Appeals) himself has observed that appellant is not the importer in the matter and somebody has used their name for import of the goods and after arriving at the decision, he exonerated the appellant from imposition of penalty. Therefore, the observation of the Commissioner (Appeals) without prejudice to taking further action against them, if ne
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cessary, and if found that they have also connived/colluded in the fraud committed in this matter, on conclusion of the investigations directed above are not warranted. Accordingly, that part of the order is set aside. 6. In these terms, appeal is disposed of.