2007 (11) TMI 431

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....n proof of total export. With the passage of time, the business of the company fell and it went into liquidation. 2. In the mean while, the customs authorities issued a notice to show cause against confiscation, in terms of Section 111(o) of the Customs Act, 1962, hereinafter referred to as 'the Act', and in terms of the bond executed by them and also against imposition of penalty, on the company and its directors under Section 112 of the Act. This was on the premise that the Assistant Commissioner of Customs had reported that neither the capital goods nor the raw materials and other goods were used in the production of goods for export in terms of Notification No. 340/86, dated 13-6-1986 and in terms of the bond executed by the com....

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....ecessarily be only one that shall fall as a liability in terms of Section 112(a)(ii). Dilating on the nature of that imposition, it was argued that in the absence of a positive finding of mens rea, the imposition of penalty on the Managing Director was clearly impermissible. 6. Examining the provisions of Section 111 and Section 112, it can be seen that any penalty referable to Section 111(o) could be imposed under Section 112 only on the basis of clause (a)(ii) thereof, which states that any person who, in relation to any goods, does or omits to do any act, which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, shall be liable in the case of dutiable go....

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....p away, to escape or avoid artfully, to shirk, to baffle, elude. (See Chambers Twentieth Century). The concept of evading involves a conscious exercise by the person who evades. To say that one has sought to evade, that person should be found to have tried to find way to evade or had aimed at evading, or had resorted to evading, for, "sought" is the past tense and past participle of the word "seek". Therefore, the process of "seeking to evade" essentially involves a mental element and the concept of the status "sought to be evaded" is arrived at only by a conscious attempt to evade. Considerable support to this view can be found in the decisions of the Apex Court in Jain Exports Pvt. Ltd. v. Union of India - 1990 (47) E.L.T. 213 (S.C.) and ....