Nuance Group (India) Pvt Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 11/2011 (H-II) CUS. dated 18/03/2011 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals-II), Hyderabad.] For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

NUANCE GROUP (INDIA) PVT LTD BANGALORE INTERNATIONAL AIRPORT, ALFA -3, AIR LINE BUILDING, FIRST FLOOR, DEVANHALLI, BANGALORE - 560 300. Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax HYDERABAD-II L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)

Appearance:

Mr. M.V.S. PRASAD, Advocate 188, SREENIVASA COLONY (WEST), OPP.SWARNA JAYANTHI HUDA COMPLEX, AMEERPET, SECTOR-19, HYDERABAD - 500038 AP For the Appellant

Mr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent Date of Hearing: 20/02/2015

Date of Decision: 20/02/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20444 / 2015

Per : B.S.V.MURTHY

The appeal is against the penalty of Rs.10,000/- imposed on the appellant-company. The learned counsel submitted that appellant had formed a joint venture to run a duty-free shop in Hyderabad. He admitted that some of their employees had indulged in wrong practices and did not follow the procedure. In this case 2 bottles of foreign origin liquor were seized from emigration police constables and admittedly these were sold to them by international passenger who had bought it from the duty-free shop of the appellant. The only ground taken for imposition of penalty on the appellant is that the bottles should have been delivered in air sealed container and the appellants employees failed to do so. According to the terms of license, delivery has to be in air sealed packs and in this case, the procedure was not followed.

2. The learned counsel submitted that appellant-company is challenging the penalty only because they have taken it as a prestige issue and they would not like to be visited with penalty when they have taken clear stand that company will not indulge in any wrong practice. He admitted that employees did a mistake in not following the procedure but otherwise in view of the fact that all these were sold to international passengers which is not barred and what international passengers did afterwards cannot be under the control of the appellant-company or the employees. Therefore he submits that penalty may be set aside.

3. Learned AR would submit that there is a procedural violation and it is an important procedural requirement that bottles are accounted properly and air sealed packs in which they are packed are accounted properly. This is to ensure that the duty-free bottles do not land within the country.

4. I have considered the submissions. The fact remains that bottles were sold to international passenger and what international passenger did with it may not be and cannot be under the control of the appellant-company. Even if the appellants were to follow the procedure of packing the bottles in air sealed packs, there is no guarantee that such bottles could not have been sold before the passengers left the airport. Under the circumstances, the air sealed packing can only be one of the precautions. Ultimately the fact that the practice came to notice of the customs department which was able to detect such omissions is the factor that has to be taken note of. From the facts on record and as discussed above, it cannot be said that appellant has rendered the goods liable to confiscation or has been concerned with dealing with such goods. The only question will be the responsibility that has to be fixed on the company. However, in this case in my opinion appellant deserves a lenient treatment having regard to the facts discussed above which show that the only omission is procedural in nature and there is no allegation that the bottles have been sold to persons who are not entitled to purchase from the duty-free shop. In view of the above discussions, the penalty is set aside and the appeal is allowed.

(Order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER rv 2