Indian Kanoon - Search engine for Indian Law

8. Learned counsel for the appellant made the following submissions:

a) There was no mens rea and the Triethanolamine was covered by the exporter's undertaking which stated that it was not a SCOMET item and that it would be used for soil testing;

b) The appellant was never investigated and no adverse evidence is taken on record by the department against it;

c) The value of Triethanolamine was less than Rs. 500/-

14. The appellant's submission on this count is that the client had given a declaration that Triethanolamine is not a SCOMET item and had also given a declaration that it was being exported for use in soil testing. This submission cannot be accepted. Firstly, it is the appellant who should know the law and advise the client and the appellant cannot depend on the client to say if Triethanolamine was a SCOMET item or not. If the appellant had checked the list of SCOMET items, it would have been evident that it was clearly a SCOMET item. Secondly, any declaration by the client cannot prevail over the law.

18. On the question of proportionality of action against the appellant, we find an attempt to export SCOMET item without the required authorization is a serious violation. In this case, it cannot even be said to be a mere oversight because the exporter had given a declaration stating that it was not a SCOMET item and therefore, the possibility of it being a SCOMET item was evident- all that the appellant had to do was to refer the policy where Triethanolamine was explicitly indicated as a SCOMET item. He should then have advised the exporter accordingly.