TaxTMI 
TaxTMI 
1990 (3) TMI 230
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.... Tribunal under Section 129D(4) of the Act. 3. The brief facts are, in the case of M/s. Swastik Woollen Mills have imported a consignment of 62 bales declared to contain wool waste 12000 Kgs. valued at Rs. 2,82,449/- (CIF) from Taiwan. The goods were described as wool waste in the Invoice and declared as such in the Bill of Entry filed for their clearance. Working on information received in the Custom House, the goods were subjected to 100% examination and it was found that out of total quantity of 12,000 Kgs. 7380 was synthetic material and only 3589 was wool waste. A test of the sample drawn from the synthetic material revealed that the goods were "Acrylic Fibre". The import duty on Acrylic Fibre is much higher at 110% plus Rs. 12.5 per kg. plus CVD Rs. 14.00 per kg. plus 25% of CVD works out to Rs. 4,07,982/- as against the import duty payable on the declared description and value of wool waste for the said quantity of 7380 kg. which worked out to Rs. 17498. The duty loss was calculated at Rs. 2,33,002/-. It was also found that the acrylic fibre could be imported under OGL vide Serial No. 31. List 8 Part II Appendix 6 of AM 1984-85 but this could be done only on the actu....
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....stoms Act with an option to redeem the same on payment of fine of Rs. 75,000/-. The wool waste of 3520 kgs. was also confiscated under Section 119 of the Customs Act for being used to conceal acrylic staple fibre fixing the redemption fine as Rs. 45,000/-. Here also the Additional Collector refrained from imposing any personal penalty under Section 112 of the Customs Act on the ground that the department had not furnished sufficient evidence to prove mens rea. This part of the order was reviewed by the Board who were of the view that in the view taken by the Additional Collector for ordering confiscation of the goods, he ought to have imposed a penalty on the respondents for the same reason. 5. Dr. N.R. Kantawalla, the learned Advocate appeared for the respondents M/s. Swastik Woollen Mills, Shri MW Nadkarni, the learned Advocate represented the respondents M/s. Kailash Textile Industries and Shri CP Arya, the learned SDR, appeared for the Revenue. 6. The two learned Advocates raised certain preliminary objections. One was that the applications under Section 129D(4) are time barred and it was pointed out that the communication from the Board has been received by the....
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....e on the decision reported in 1987 (29) E.L.T. 33 (Delhi) in Jain Exports Ltd. v. Union of India, in this regard. He pointed out that the goods acrylic fibre enjoy very high margin of profit, much more than 100%, and may be around 145% at the relevant time, and in such circumstances such deliberate import concealing it under wool waste ought to have been visited with stringent penalty. 10. Dr. N.R. Kantawalla, the learned Counsel, pointed out that the prayer in the appeal before the Tribunal is for imposing penalty on the respondents by the Tribunal for which the Tribunal has no powers which is outside the purview of the Tribunal's jurisdiction as such penalty can be imposed only by the original authority. He further argued that imposing penalty is a matter of discretion and in Paras 11 and 12 of the Additional Collector's order, in the case of M/s. Swastik Woollen Mills, would show that the Additional Collector had found that there was no evidence showing mens era, and had considered the analysis certificate produced by the respondents regarding the goods from the suppliers, as also the fact that it was their first import, and had come to the conclusion that it was not a f....
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....ncerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner, dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, shall be liable, - for penalty as laid down in that section." The section uses the term "shall" which implies that the discretionary element is absent. It therefore follows that when once the import of the goods is held to be as unauthorised, the logical legal consequence of personal penalty on the person concerned with such unauthorised import has to follow. The mitigating circumstances, if any, in a case could perhaps be taken into consideration for determining the quantum of penalty, but a plain reading of the section, in our view, would indicate that section cannot be read to permit the adjudicating authority refraining from imposing a penalty at all after having adjudged the import as unauthorised. This view finds support in the case decided by the Hon'ble Supreme Court in the case of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh reported in 1983 (13) E.L.T. 1392 (S.C.) = 1984 ECR 467 (S.C.). The Supreme Court in that case was considering ....