Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (I), Mumbai vs Freight Systems (P) Ltd on 8 February, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. C/65/03 (Arising out of Order-in-Appeal No. 58/02/CAC/CC/MCT dated 20.1.2002 passed by Commissioner of Customs (Import), Mumbai) For approval and signature: Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Commissioner of Customs (I), Mumbai Appellant Vs. Freight Systems (P) Ltd. Respondent Appearance: Shri V.K. Singh, Authorised Representative (SDR), for appellant None for respondent CORAM: Honble Mr. P.G. Chacko, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 8.2.2011 Date of Decision: 8.2.2011 ORDER NO Per: P.G. Chacko
This appeal was filed by the department against the Commissioners order wherein no penalty was imposed on the respondent. The appellant is represented by the learned SDR. There is no representation for the respondent despite notice, nor any request of theirs for adjournment. We are taking up this old appeal for final disposal.
2. In the impugned order, the learned Commissioner had confiscated a consignment of what was declared as glass stone-beads in a bill of entry dated 12.11.1997 filed by the respondent, under Section 111(d) & (m) of the Customs Act on the ground that the goods imported by the company was actually jewellery stones which were misdeclared as glass stone-beads, that no import licence was produced by them and that the value of the goods had also been misdeclared. The learned Commissioner also enhanced the value of the goods to over Rs.1.18 crores vis-`-vis the declared value of Rs.15,42,618/-. However, he refrained from imposing penalty on the respondent under Section 112 of the Act for the reasons stated in the third para of the operative part of the impugned order, which reads as under:-
The evidence further reveals that M/s. Freight Systems (India) Pvt. Ltd., Mumbai were assigned the additional job of getting the goods re-exported to the sender through M/s. Schenkers International, Mumbai. It cannot be said that they were concerned actually with the import of the goods and therefore, M/s. Freight Systems (India) Pvt. Ltd., Mumbai are not liable to penalty under Section 112(a) of the Customs Act. So far it relates to M/s. Swarvoski & Co. whose acts of omission and commission do fall within the ambit of Section 112(a), they being a foreign Co., I refrain from imposing penalty on them.
3. In the present appeal, the grievance of the appellant is that no penalty, though warranted in the facts and circumstances of the case, was imposed on the respondent. Reiterating the grounds of this appeal, the learned SDR submits that the facts and circumstances of this case indicate that the respondent was very much concerned with the goods. It is submitted that the aforesaid bill of entry was filed, albeit belatedly, by the respondent for the purpose of re-export of the goods. It is submitted that the relevant bill of lading indicated the respondent as the consignee and contained an advice to hold this shipment until further instructions. It is further submitted that the respondent continued to pay the Port Trust charges in respect of the shipment upto August 1997 to prevent the goods from being auctioned. It is submitted that the respondent was aware of the fact that the goods were shipped unauthorisedly to India. In the circumstances, according to the appellant, a penalty should have been imposed on the respondent under Section 112 of the Customs Act. The learned SDR has urged that a reasonable penalty be imposed on them.
4. We have perused the records and considered the submissions. The definite finding of the learned Commissioner is that the respondent was not concerned actually with the import of the goods and hence not liable to penalty under Section 112(a) of the Act. The appellant has claimed that the respondent was actually concerned with the import of the goods in the aforesaid circumstances. It is true that the bill of lading named the respondent as consignee. But it also named Asia World Exports in the column for marks and Nos. The instruction/advice of the exporter to hold the shipment until further instructions figured just below this column. It is, therefore, not ascertainable as to whether such instruction/advice was addressed to the respondent or to Asia World Exports. Neither the memorandum of appeal nor the SDRs submissions throw any light on this aspect. The appellant has also claimed that the respondent paid Port Trust charges upto August 1997 to prevent the goods from being auctioned, but this claim is not supported by any evidence. The bill of entry referred to by the learned SDR is not one filed for clearance of the goods for home consumption. It was filed, admittedly, for re-export of the goods. In the circumstances, we are not in a position to attribute mens rea to the respondent. The SDR has argued that no mens rea is required for such a penalty. But this argument also does not take the Revenues case further inasmuch as the concern of the respondent with the goods is yet to be established. In other words, it is yet to be shown that the respondent wanted to clear the goods for home consumption in a fraudulent manner. What is disclosed from the records is that he wanted to re-export the goods albeit belatedly. In the circumstances, we are of the view that the reason stated by the learned Commissioner for not imposing a penalty on the respondent under Section 112 has not been rebutted. In the result, the appeal gets dismissed.
(Pronounced in Court) (Sahab Singh) Member (Technical) (P.G. Chacko) Member (Judicial) tvu 1 5