2011 (8) TMI 117

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....nt shipments covered under 9 shipping bills. At sr.no.4 of the said container, there is a consignment of pallets of M/s. Balu India, the exporter. Being the consolidator, they had received from their customer M/s. Balu India two lots of shipment of 11 pallets each, one lot vide shipping bill No.6871292 dated 28.11.2008 destined to Bandar Abbas and another lot vide shipping bill No.6884292 dated 3.12.2008 destined to Port Aqaba. The shipping bill No.6871292 dated 28.11.2008 destined to Bandar Abbas was cleared by the customs authorities for export on 8.12.2008. While stuffing the goods into the Container No.CRSU 9016600, the cargo covered under shipping bill No.6884292 dated 3.12.2008 destined to Port Aqaba. got stuffed erroneously due to th....

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....rety as there was no mala fide on the part of the appellants. He further submitted that as clear from the facts, there were two shipments of 11 pallets each of M/s Balu India which were exactly similar, one supposed to go to Port Aqaba and other to Bandar Abbas. Due to mistake, the customs cleared consignment remained in shed whereas other consignment which was not cleared by the customs was loaded to the vessel and on their own they have written to the department about the mistake and for such a mistake, the penalty of Rs. 5 lakhs on the appellants is too harsh and disproportionate to the severity of the matter and the issue involved. He further submitted that the cargo inadvertently stuffed was brought back to India and on examination it ....

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....r is liable to penalty under Sec.114 of the said Act. Ld.SDR has also relied on the following case laws in support of his contention:-   1). CC(Export), Chennai-I vs Bansal Industries ( 2007 (207)E.L.T. 346(Mad)   In this case it was held by the Hon ble Madras High Court that element of mens rea not required for imposition of punishment under Customs Act, 1962. The High Court has relied in para 7 of the order on the judgment of the apex court passed in Chairman , SEBI vs Shriram Mutual Fund (2006)5 SCC 361) which is reproduced below:-   7. It is oft-repeatedly held that mens rea is not an essential ingredient for contravention of the provisions of a civil law. The Apex Court recently in Chairman, SEBI v. Shriram Mutu....

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.... I find that this is a fact that the consignment belonging to M/s. Balu India covered under shipping bill 6884292 dated 3,12,08 which was destined to Port Aqaba was stuffed in the container without examination done by the customs authorities and without Let Export Order. The consignment was allowed to be brought back to India as per the appellants request. The Shilling Line has loaded the container containing the goods and exported out of India with blatant disregard to the provisions of the Customs Act, 1962 and did not even bother to see whether the proper custom officer has given Let Export Order for the said goods or not. Sec.113(g) of the Customs Act is reproduced below:-   any goods loaded or attempted to be loaded on any conv....