TaxTMI 
TaxTMI 
2016 (9) TMI 567
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.... (a) of the Customs Act, 1962. (iii). I direct assessment of the declared quantity of the Cut & Polished Diamonds vide B/E No.00160 dtd 2.12.2011 under invoice no. 110546 dated 30.11.2011 with Assessable Value of Rs. 3,54,82,085/(Rupees Three Crore Fifty Four Lakh Eighty Two Thousand and Eighty Five only) on merits as per law. (iv). I allow re-export of the excess goods i.e. 214.88 Cts of Cut & Polished Diamond having CIF value USD 2,90,088/ equivalent to Rs. 1, 52, 58,629/ to the supplier M/s. Jayam N. V. on payment of the above mentioned Redemption Fine and Penalty. 2. The fact of the case is that the officers of Air Intelligence Unit on 5.12.2011 retrieved an import Bill of Entry No. 000160 dated 2.12.2011 at PCCCC, Bandra-Kurla Complex, Bandra(E), Mumbai, on the basis of specific information with regard to under invoicing of Import of Diamonds. On enquiry from Examination officer on duty, it was known that the above mentioned Bill of Entry was not accompanied with packing list and hence, the consignment was not cleared on 2.12.2011 and the detailed packing list was asked f....
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....tics pouches marked as CD-A& CD-B and both were having bar codes on them. In CD-A there were Ten(10) small plastics pouches whose collective weight was 183.92 Cts. In CD-B there were Twelve(12) small plastics pouches whose collective weight was 103.64 Cts. Thus the weight of CPD 287.56 Cts in packet No. 1 was found to be approximately as per declaration (287.54 Cts) in the Invoices No. 110546. (b) Packet No. 2 was marked as 'CC2 ALL'. In this there were Nine(09) Plastics pouches which were having Bar Codes for Identification and contained further smaller plastics pouches as per the details given in the SCN. The declared weight for second packet was 207.17 cts in the invoice. However, the collective weight of the second packet was found to be 423.07 cts. 4. Thus on examination, 215.37Cts (approx) of Diamonds valued at Rs. Rs. 1,52,93,424/- were found in excess, which were not declared on the invoice and on the relevant bill of entry. Thereafter, the total quantity of the Cut and Polished....
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....ignment. She submits that the appellant have correctly declared the quantity of diamonds ordered by them and imported as per the invoice. Since they were not aware of excess quantity supplied mistakenly by the supplier there is no mis-declaration on the part of the appellant. She submits that Ld. Commissioner also in the impugned order mentioned that there is no malafide intention of the importer as no duty is involved. For this reason only the excess imported goods were allowed to be rexported and remaining goods were allowed to be cleared for home consumption. In support of her submission, she placed reliance on the following judgments: (a) Guru Ispat Ltd Vs. Commissioner of Customs(Port), Calcutta [2003(151) ELT 384] (b) Commissioner Vs. Guru Ispat Ltd. [2003(157) ELT A 87(SC)] (c) Aniketa Krishna International Vs. Commissioner of Customs, Jaipur[2012(280) ELT 131] (d) Makali Metals Pvt ltd. Vs. Commissioner of Customs, Raigad, [2001(138) ELT 607] (e) Oriental Containers Ltd.Vs. Union of Ind....
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.... by both sides and perused the record. 9. The fact is not under dispute that excess quantity of cut and polished diamonds were shipped by the supplier. The appellant heavily relied upon the explanation given by the supplier that excess shipped goods to appellant was meant for supply to Hong Kong as there was similar quantity short shipped to Hong Kong party. In this regard, I observed that if such serious mistake occurred the same should have been intimated to the appellant immediately whereas all the explanations brought before the department only when the excess quantity was detected, this shows that explanation and reason for excess shipped quantity given by the appellant appeared to be afterthought. Even if it is presumed that there is bonafide mistake in shipping excess quantity of diamonds, I am of the view that for the purpose of mis-declaration mens rea is not required. When the excess goods were found as compared....
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....ent of mens rea or mala fides 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 v. Sriram Mutual Fund to support its contention of detection of violation warranting penal action. That is a case of misdeclaration of quantity and value. They have also relied on judgment Madras High Court reported in 2007 (207) E.L.T. 346 (Mad.) wherein it is held that in case of misdeclaration and undervaluation of goods "mens rea 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 - 1993 (67) E.L.T. 25 (S.C.) has also held that in case of misdeclaration of description and value of imported goods, question of mens rea not relevant for liability to confiscation and penalty under Sections 111(m), 112 and 125 of the Customs Act. Therefore for invoking penal provisions under Customs law, mens rea is not pre-requisite. (c) P. BHASKAR NAIDU Versus COMMISSIONER OF CUSTOMS, CHENNAI [2013 (298) E.L.T. 248 (Tri. - Chennai)] 8. The details of the case as narrated i....
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....filed by Alfa for clearance of the goods and the demand of duty is upon them. Though there has been no representation for Alfa before us, we have perused the relevant records and considered their grounds against the Commissioner's order. Alfa did not produce any invoice issued by Dungarmal (high seas seller). They produced the aforesaid invoices issued by ODC to Dungarmal and the value mentioned in those invoices was declared in the Bs/E. Alfa has a case that they were not aware of what had transpired between Dungarmal and ODC or of the transactions between them except that the price mentioned by ODC in the above invoices was recovered from Dungarmal. In this circumstance, according to Alfa, it cannot be said that they misdeclared the value of the goods. On this ground, Alfa has resisted the confiscation and penalty. It is for the person filing the B/E to ensure the correctness of his declaration therein it was open to Alfa to produce invoices (if any) issued by Dungarmal (high seas seller). The Revenue has established that Dungarmal paid a higher price to ODC than what was mentioned in the aforesaid invoices. In the ordinary course of trade, Dungarmal would not sell the goods to A....
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....) LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI [2009 (237) E.L.T. 720 (Tri. - Chennai)] 3.3 As the offending goods are liable for confiscation, fine is justified in law. A fine for redemption of goods confiscated levies a monetary charge on the importer of the goods confiscated. Redemption fine also serves the same purpose as a penalty on the importer. Therefore, considerations that weigh against the penalty imposed under Section 112 of the Act should govern also the fine imposed. In the absence of a finding of wilful misdeclaration of the offending goods as falling under grade 4A to evade payment of ADD, a nominal fine should suffice. A fine of Rs. 25,000/-, I find, will more than meet the ends of justice in this case. 4. I find that in the Akbar Badruddin Jiwani v. Collector of Customs reported in 1990 (47) E.L.T. 161 (S.C.), the Apex Court observed as under : "58. In the present case, the Tribunal has itself specifically stated that the appellant has acted on the basis of bona fide belief that the goods were importable under OGL and that, therefore, the Appellant deserves lenient treatment. It is, therefore, to be considered whether in the light of this specific find....