Debangsu Basak, J. - (1.) The writ petition is directed against an order dated May 23, 2017 passed by the Commissioner of Customs.
(2.) Learned advocate for the petitioner submits that, although the impugned order is appealable and that, his client will prefer an appeal against a portion of such order, the remaining portion of the order is without jurisdiction. In support of the contention that, a portion of the impugned order is wholly without jurisdiction, learned advocate for the petitioner submits that, the petitioner was issued a show cause notice dated March 21, 2016. The show cause notice was on the basis of an intercept made by the Directorate of Revenue Intelligence, Kolkata in respect of four passengers arriving at Netaji Subhash Chandra Bose International Airport from Hong Kong via Bangkok on October 3, 2015. The petitioner was intercepted with high value electronic items. The show cause was heard. Such show cause was disposed of by the impugned order. In the impugned order, the Authorities have issued few directions, the first direction is on confiscation under Section 111(d) and 111(f) of the Customs Act, 1962. The next direction is the imposition of penalty under Section 112(a) and (b) of the Customs Act, 1962. He submits that, so far as these two directions are concerned, the petitioner will prefer an appeal therefrom as the same is appealable. Referring to the imposition of penalty by invoking the provisions of Sections 112(a) and 112(b) of the Customs Act, 1962, he submits that, Authorities did not have any basis for the purpose of either invoking such provisions or calculating the penalty as imposed in the impugned order. He submits that, Sections 112(a) and 112(b) cannot be applied simultaneously as they govern separate fields. This, according to him, is the first infirmity in the penalty imposed. Secondly, the penalty imposed under Section 112(a) would be on the goods liable to confiscation. So far as the petitioner before me is concerned, he has been imposed a penalty of Rs. 100 lacs. So far as the imposition of penalty under Section 112(b) is concerned, there is no goods available with the Customs Authority to impose such quantum against the petitioner. Such imposition is arbitrary. 2. The respondent is represented.
(3.) The impugned order dated May 23, 2017 is appealable. The petitioner has contended that, he will prefer an appeal if the portion of imposition of penalty under Section 112(a) and Section 112(b) of the Customs Act, 1962 are set aside. There is some substance in the contention of the petitioner so far as the imposition of penalty under Section 112(a) and Section 112(b) of the Customs Act, 1962 in the facts of the case are concerned. The provisions of Sections 112(a) and 112(b) of the Customs Act, 1962 are sought to be attracted in the present case by the impugned order. As the petitioner had allegedly successfully smuggled goods into India on other occasions, the adjudicating authority assumes that the petitioner is guilty of smuggling of the value as indicated in the impugned order. The penalty is imposed on an assumption. Such assumption is not supported by any material. Therefore such imposition of penalty on the petitioner cannot be sustained. The following penalty is set aside :- "(ii) I also impose following penalty in respect of the electronic and other goods, admitted to have successfully smuggled into India in the past as referred in Para 11 (iii, iv,v and vi) of the show cause notice under section 112(a) and 112(b) of the Customs Act, 1962, as reproduced in para 16 (i, ii, iii & iv) under the heading "Discussion & Findings" of the instant Order-in-Original, as indicated below against their names :- (a) Noor Alam : Rs. 10,00,000/- (Rupees Ten lakhs only) (b) Roz Mohammed : Rs. 5,00,000/- (Rupees Five lakhs only) (c) Sarfaraz Mohammed : Rs. 1,00,00,000/- (Rupees One crore only) (d) Rajab Ali: Rs. 1,25,00,000/- (Rupees One crore twenty five lakhs only)";