Customs, Excise and Gold Tribunal - Bangalore
General Commodities Ltd. vs Cce on 7 April, 2000
Equivalent citations: 2000(93)ECR185(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. Appellant has challenged the imposition of redemption fine of Rs. 20,000/- and penalty of Rs. 2000/- in terms of the order in appeal No. 45/98 dated 26.3.1998 on account of misdeclaration of the Bill of Entry and the invoice also. Their contention is overseas supplier did not inform them about the actual despatch of four machines, instead informed them of two machines and they under the bona fide belief that they were supplied with two units hence filed the Bill of Entry without any mala fide intention to misdeclare with intention to evade payment of duty in the matter. They state that they have given another Bill of Entry containing the documentary evidence of four machines and they filed the same after due verification. However, the customs house agent on the bona fide belief filed BE assuming only two machines had been supplied. But later on examination, the department found against the declaration of two machines, four machines had been imported and hence ordered confiscation and imposition of redemption fine besides penalty. The Commissioner (Appeals) accepted the plea of the appellants that the error on the part of the importer was genuine, he reduced the redemption fine from Rs. 40,000/- to Rs. 20,000/-.
2. Heard both the sides in the matter.
3. The learned Counsel for the appellants contends that, the bona fide belief on the part of the appellants having been established, there should not have been an order of confiscation and imposition of penalty on the appellants as the mistake was genuine and not with an intent to evade payment of duty. She also relied upon the Judgment of the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa as reported in 1978 ELT (J-159) : ECR C 321 (SC) according to which no penalty should be imposed for technical or venial breach of legal provisions or where the breach flows from the bona fide belief that the offender is not liable to act in the manner prescribed by the statute.
4. On the other hand the learned DR submits that the Supreme Court in the case of Jain Exports Pvt. Ltd. v. UOI as have held that even if the action of the assessee was bona fide, that by itself is not a ground to waive the entire redemption fine and each case depends on the totality of the facts and circumstances. He submits that once the misdeclaration has been established under Section 111(m) then the goods are required to be confiscated. He submits that the redemption fine can be imposed upto 100% of the market value of the goods in terms of Section 125. He further submits that both the authorities below have imposed a nominal redemption fine and penalty which should be retained.
5. On consideration of the submissions and on perusal of the order, I notice that both the authorities have accepted the plea of bona fide belief of the appellants and the original authority has held that the error on the part of the appellants was genuine, but for the detection of the excess quantity by the Customs House, two units would have been cleared. This position has not been controverted and the appellants have also stated that the error has crept in due to mistake on the part of the Customs house agent. However, in the light of the judgement of the Supreme Court in the case of Jain Exports Pvt. Ltd. (supra), the appellants' plea is required to be accepted for granting reduction in the quantum of redemption fine and penalty. Accordingly, the redemption fine is reduced to Rs. 10,000/- (Rupees Ten thousand) and the penalty to Rs. 1,000/- (Rupees One thousand) in view of the plea of genuineness accepted by the authorities below. Ordered accordingly.
(Dictated and pronounced in open Court).