2003 (1) TMI 404 - AT - Customs

Summary

Issues Involved:
1. Imposition of penalty on the appellant.
2. Appellant's role and authority in the amendment of the licence.
3. Applicability of Section 112(a) of the Customs Act.
4. Mens rea and appellant's involvement in the importation process.

Issue-wise Detailed Analysis:

1. Imposition of penalty on the appellant:
The appellant, a Licensing Assistant, was penalized Rs. 50,000/- for allegedly abetting in the illegal import by M/s. Best Fabrics by amending the description of goods in the Advance Licence. The Tribunal examined the sequence of events and found that the appellant had consistently suggested that M/s. Best Fabrics be directed to submit evidence for amending the description from 'cotton fabrics' to 'man-made fabrics'. The decision to issue the licence based on the Textile Commissioner's recommendation, before placing the case before the Zonal Advance Licensing Committee (ZALC), was made by the Deputy Director General, Foreign Trade (DDGFT), not the appellant. The Tribunal concluded that the appellant merely complied with orders from higher authorities and had no role in the final issuance of the licence.

2. Appellant's role and authority in the amendment of the licence:
The Tribunal recognized that the appellant, being a ministerial officer, did not possess the authority to include or exclude items in a licence. His role was limited to putting up files and notes to senior officers, who then made the decisions regarding the issuance and terms of the licence. The Tribunal found no evidence that the appellant benefited from the inclusion of "man-made" in the licence or that he had any decision-making power in this regard.

3. Applicability of Section 112(a) of the Customs Act:
Section 112(a) of the Customs Act presupposes an element of mens rea (guilty mind). The Tribunal found no evidence indicating any guilty mind on the appellant's part. The appellant's act of indicating "man-made fabrics" in the licence was considered part of his official duties and not an act connected with the physical importation or preparation for import of goods. Consequently, the provisions of Section 112(a) were deemed inapplicable to the appellant.

4. Mens rea and appellant's involvement in the importation process:
The Tribunal emphasized that the imposition of a penalty under Section 112(a) requires evidence of a guilty mind and involvement in the importation process. The appellant's actions were limited to internal notings and suggestions within the departmental file, which were subsequently approved by higher authorities. The Tribunal noted that supervisory officers in the DDGFT Office had also been penalized, and there was no evidence of any interpolations by the appellant after the licence was signed by the proper officer. Therefore, the appellant could not be held liable under the Customs Act for merely performing his ministerial duties.

Conclusion:
The appeal was allowed, and the penalty imposed on the appellant was set aside. The Tribunal concluded that the appellant had no decision-making authority, did not benefit from the amendments, and lacked the mens rea required for a penalty under Section 112(a) of the Customs Act. The appellant was granted consequential relief as per law.