2006 (9) TMI 58

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....ion made by the assessee. But, on the basis of intelligence that the consignments contained prime quality Tinplate sheets, the consignments were intercepted, detained and re-examined in the presence of independent witnesses. The samples were tested and it was found that the consignments could not be classified as Tin Free steel sheets, but they could be classified as Prime sheets. 2.2Since there was mis-declaration and under-valuation of goods, summons was issued to the assessee. The Proprietor of the assessee, by name, Vinay Bhansal appeared and stated that there was mistake in the despatch of goods at the port of loading and that the offence was committed by the overseas supplier and requested to take a lenient view agreeing to pay the d....

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....al raising the following questions of law : 1.      Whether Section 112 of Customs Act 1962 by which the penalty is levied, the burden of proof that the importer had acted bona fide is on the importer and that the importer cannot be heard to say despite misdeclaration it would be upto the Department to prove that there was deliberate intention on the part of the importer to misdeclare? 2.      The Tribunal failed to note that the Commissioner had, on an appreciation of facts and materials available on record, clearly held that the loading at two different places could not be said to be a mistake by the leaders and the mistake projected by the importer was pre-planned and not a coincidence ....

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.... as well as the original authority. 4.At the outset, we are of the view that the questions of law referred to above have not been happily framed, as the entire issue in this appeal revolves on the intention of the assessee in making such a misdeclaration with a view to evade duty, and accordingly, we reframe the question as under : "Whether the element of mens rea is required for imposition of punishment under the Customs Act?" 5.Learned Counsel appearing for the appellant submits that the Tribunal has failed to consider the reasonings given by the original authority on the basis of evidence on record, but, on the other hand, the Tribunal has merely observed that it is inclined to accept the reasonings given by the assessee and hence, t....