TaxTMI 
TaxTMI 
2007 (4) TMI 489
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..../2003, dated 16-2-2004, there is a requirement that the importer shall before 30 days but not later than the date of import, furnish the details specified in the Rule 18 to the authority specified in the Schedule 5 of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. In the present case, the appellants had violated the above conditions. Therefore the Revenue proceeded against the appellants and the Commissioner passed the impugned order wherein he has held that the non-observance of the conditions of EXIM Policy provision makes the impugned goods liable for confiscation under Section 111(d) of the Customs Act, 1962 read with the EXIM Policy. He has imposed a redemption fine of Rs. 11,22,948/- under Section 125 of the Cu....
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.... (v) The requirement of intimation was brought on statute book from 16-2-2004. The present import is on 18-3-2004 and the Bills of Entry were filed on 17-3-2004 and the date of shipment shown in the Bill of Lading is 11-3-2004. The DGFT Notification No. 35 (RE-2003) 2002-07 dated 16-2-2004 was not available to the general public and hence non-intimation of details of import should not be considered as a sole ground for confiscation and imposition of penalty in a case where there has been total compliance of all the procedural formalities envisaged under Customs Law, by the appellants. (vi) For imposing penalty presence of mens rea is a mandatory requirement and in the absence of which imposition of pena....
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.... was not brought to our notice. However, in the Orchid Chemicals and Pharmaceuticals Ltd. case, the learned Advocate clearly brought to our notice that the DGFT Notification dated 16-2-2004 had not been issued under Section 3(2) of FTDR Act, 1992, but issued under Section 5 of FTDR Act. Therefore the Customs authorities cannot proceed against the appellants in terms of Section 3 (3) of FTDR Act, 1992 read with Section 111(d) of Customs Act, 1962. Our findings in Orchid Chemicals & Pharmaceuticals Ltd. case are very relevant even for the present case. Therefore we are reproducing the same : "7. We have gone through the records of the case carefully. It is seen that the Customs Authorities permitted the import and warehousing of the goo....
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.... 7.1 In view of the above, legally the Commissioner's order confiscating the impugned goods under Section 111(d) read with 3(2) and 3(3) of FTDR is not correct. Hence, the impugned order has no merits and the same is set aside. Thus we allow the appeal with consequential relief." Further the Customs authority themselves permitted the warehousing of the goods on 17-3-2004. This shows that they were also not aware of the requirement. Had they been aware they would not have permitted the warehousing. In any case, the non-intimation before 30 days by the appellants is not on account of deliberate violation but only due to lack of awareness of the DGFT Notification. Even in this age of internet, the general public and trade do not come to ....