TaxTMI 
TaxTMI 
2014 (2) TMI 345
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....e Bill of entry praying for inclusion of another painting titled 'Rajasthan'. The appellants submitted that inasmuch as both the paintings were purchased by two different invoices dated 4.8.2006 and inasmuch as both the paintings were showing invoice value of Euro 20,000/-., mention of only one painting in the Bill of entry was due to oversight and was a mistake on their part. 3. Inasmuch as the consignment consisted of two paintings, and the Bill of Entry was only filed for one painting, the matter was taken up for adjudication. The original adjudicating authority observed that amendment in the Bill of entry was asked by the importer only after the order for first check was given on the Bill of entry though the said request was prior to examination of the goods. As such, he confiscated the painting with an option to the appellant to redeem the same and also imposed penalty upon them. 4. On appeal against the said order, Commissioner (Appeals) held in their favour and observed as under:- "5. I have carefully gone through the case records as well as the submissions made by appellant during personal hearing. Section 149 of the Customs Act, 1962 provides for the amendm....
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.... stand given as 'Rajasthan' in one invoice and as 'Bindu' in another invoice. The said declaration in the particulars column, can be missed by any person and both the invoices can be presumed to have been issued only in respect of one painting. We also note that payment for both the painting stand already remitted to the foreign supplier through Bank on 24.7.2006 and 3.5.2006. We also note that first check order was passed on 18.8.06 whereas the request for amendment was made by the importer on 17.8.2006. In view of all the above factors, we hold that this is not a case of intentional mis-declaration of goods but an unintentional on the part of the person filing the Bill of Entry. Commissioner (Appeals) has rightly observed that section 149 is made for such unintentional mistakes. 'Human is to err' and if such bonafide errors are not allowed to be amended, we really fail to understand as to what would be covered by the provisions of section 149 of the Customs Act. 7. In view of the above, we find no merits in the Revenue's appeal. (Pronounced in the court on) PER : Manmohan Singh 8. I have gone through the draft order prepared by Hon'ble member (Judicial) wherein appeal of the ....
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....of pooper documents. 13. It was contention of the department that importer did not come forward to disclose the total import made by two invoice while presenting Bill of Entry on 12/8/2006. Only on detection by customs apprehending misdeclaration charge, amendment was sought. This clearly shows the malafides on the part of appellants. 14. I have also gone through grounds of appeals of Revenue at Sl. No. iv, v, vi and vii of memo of appeal where it has been brought that there is no requirement of mens rea or malafides for confiscation and imposition of penalty. But violation attracts the provisions of law for penal action, Revenue relied on Supreme Court judgment in the case of 2006(5)SCC 361 Chairman, SEBI Vs. Sriram Mutual Fund to support its contention of detection of violation warranting penal action. That is a case of mis-declaration of quantity and value. They have also relied on judgment Madras High Court reported in 2007 (207) ELT 346 (Mad.) wherein it is held that in case of mis-declaration and undervaluation of goods "mensrea is not required for imposition of punishment under Customs Act, 1962". Similarly Hon'ble Supreme Court in the case of M/s Pine Chemical Suppliers 1....
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.... OPINION Whether on the facts and circumstances of the case denial of amendment to Bill of Entry was justified and imposing of redemption fine is sustainable and penalty reducible to Rs.1,00,000/- (Rs. One Lakh) as held by Hon'ble Member (Technical). OR Whether on the facts and circumstances of the case upholding Order-in-Appeal is maintainable rejecting the appeal of revenue as held by Hon'ble Member (Judicial). (Archana Wadhwa) Member (J) (Manmohan Singh) Member (T) 20. I have gone through the order passed by Ld. Member (Judicial) Ms. Archana Wadhwa and order passed by ld. Member (Technical) Shri Manmohan Singh and difference of opinion referred to me by the President. 21. Heard ld. Advocate Shri Prabhat Kumar and ld. D.R. Shri R.K. Mishra for the Revenue. 22. I find that Bill of Entry was filed by the appellant on 12.8.2006 declaring one painting in it. Appellant moved an amendment request on 17.8.2006 to the Addl. Commissioner of Customs. Amendment request was rejected by the Addl. Commissioner vide Order-in-Original dated 26.8.2006. Since on examination of goods consignment was found to contain 2 painting, original authority confiscated one painting and allowed to be r....