2008 (11) TMI 522 - AT - Customs

Summary

Issues:
1. Confiscation and penalty imposed under Sections 111(1), 111(m), 111(o) of the Customs Act, 1962.
2. Non-inclusion of item in the bill of entry and invoice during assessment.
3. Bona fide error versus deliberate mis-declaration.
4. Interpretation of relevant legal provisions for confiscation.
5. Timing of invoice availability and subsequent actions by the importer.
6. Validity of TRA obtained by the importer.
7. Bona fide mistake in not including the item in the bill of entry.

Analysis:
1. The Commissioner of Customs ordered the confiscation and penalty on the importer for not declaring the Run Out Leak Testing Gauge in the bill of entry. The importer challenged the confiscation and penalty, arguing that the omission was not deliberate and had no malafide intention. The Commissioner relied on Sections 111(1), 111(m), 111(o) of the Customs Act, 1962 to justify the action.

2. The Commissioner found that the importer failed to declare the item in the bill of entry and produced different sets of invoices during assessment, leading to the conclusion that the importer attempted to clear the goods on a concessional rate of duty by not declaring the item. The importer cited previous judgments but failed to convince the Commissioner of the bona fide nature of the error.

3. The Tribunal noted that the importer had the invoices, including the Run Out Leak Testing Gauge, before filing the bill of entry and had communicated about the item's exclusion under the EPCG license. The Tribunal found that the importer's actions prior to examination and the TRA obtained indicated a lack of intention to conceal the item.

4. Considering the timing of events and the importer's proactive steps to rectify the error, the Tribunal concluded that there was a bona fide mistake in not including the item in the bill of entry. As there was no mala fide intention, the Tribunal set aside the confiscation and penalty, ruling in favor of the importer.

This detailed analysis of the judgment provides insights into the legal reasoning behind the decision to set aside the confiscation and penalty imposed on the importer.