2001 (11) TMI 601

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....old jewellery weighing 7532.260 gms valued at Rs. 28,15,680/- and penalty of Rs. 25 lakhs can be imposed under Section 112 of the Customs Act. 2. Arguing for the appellants, ld. Counsel Shri K.R. Natarajan contended that the appellant importer had been importing gold jewellery against the Special Import Licence during the Financial Year 1999-2000 clearing the same at the concessional rates of duty in terms of the Notification No. 117/94 as amended by Notification No. 2/99-Cus. However, on 1-4-2001, the Import Export Policy was amended and the condition for acquiring a specific licence for importing the gold jewellery was incorporated. A specific ITC heading was carved out under the Heading 711319.01 restricting the item that could b....

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....e Import Export Policy had in the meanwhile been revised w.e.f. 1-4-2001. He drew reference to the Apex Court judgment rendered in Akbar Badruddin Jiwani v. CC - 1990 (47) E.L.T. 161 (S.C.) wherein the Apex Court has laid down the principle that there has to be mensrea for imposing penalty. In these circumstances, the penalty was set aside after it was shown to the Apex Court that appellants bore bona fide belief for importing the goods. He submits that the principle laid down by the Apex Court in this judgment applies to the facts of this case also. He also referred to the following judgments wherein it has been held that penalty is not imposable :- (1)     Raja Imports and Exports v. CC, Bombay - 2000 (119) E.L.T. 3....

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....pellants. On such re-export being done, appellants cannot be insisted for paying the redemption fine as the same is not imposable. Therefore, the order is modified to the extent that appellants are entitled to re-export the same without any fine being confirmed. As regards the plea that no penalty is required to be imposed in this case in the light of ratio of the judgment of the Apex Court, High Courts and Tribunal, we are of the considered opinion that the Commissioner has not at all applied his mind on this aspect of the matter. The adjudicating authority is duty bound to consider the plea of bona fide belief and see as to whether the plea can be accepted for not imposing penalty. Further argument raised was that even in case, if the Com....