Home Case Index All Cases Customs Customs + AT Customs - 2016 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (9) TMI 567 - AT - CustomsConfiscation of consignment - under-invoicing of import of Diamonds - Bill of Entry not accompanied with packing list - option to pay redemption fine - section 125 of the Customs Act, 1962 - imposition of penalty - Section 112 (a) of the Customs Act, 1962 - Held that - if serious mistake occurred the same should have been intimated by the appellant immediately whereas all the explanations brought before the department only when the excess quantity was detected. This shows that explanation and reason for excess shipped quantity given by the appellant appeared to be afterthought. Even if it is presumed that there is bonafide mistake in shipping excess quantity of diamonds, for the purpose of mis-declaration, mens rea is not required. Even though there is no mens-rea in the mis-declaration but if there is mis-declaration intentional or un-intentional, the goods are liable for confiscation. The element of mens-rea is only parameter to decide the quantum of fine and penalty - confiscation justified - quantum of fine and penalty reduced. Re-export of excess found goods - Held that - allowed to be re-exported. Decided partly in favor of appellant.
Issues Involved:
1. Confiscation of imported diamonds. 2. Imposition of redemption fine. 3. Imposition of penalty. 4. Re-export of excess goods. 5. Allegation of mis-declaration and under-invoicing. 6. Malafide intention and mens rea. Issue-wise Detailed Analysis: 1. Confiscation of Imported Diamonds: The Commissioner of Customs, Airport, Mumbai, ordered the confiscation of a consignment of cut and polished diamonds weighing 709.61 carats, valued at ?5,03,89,406, under sections 111(l) and 111(m) of the Customs Act, 1962. The confiscation was based on the finding that the consignment included excess diamonds not declared in the invoice or bill of entry. The total quantity found was 710.10 carats, with 215.37 carats being in excess, leading to the seizure of the entire consignment under the belief of under-invoicing and mis-declaration. 2. Imposition of Redemption Fine: The Commissioner provided the importer, M/s S. Rajiv & Co., an option to redeem the confiscated goods by paying a redemption fine of ?50,00,000 under section 125 of the Customs Act, 1962. This fine was imposed despite the appellant's claim that the excess diamonds were shipped mistakenly by the supplier. 3. Imposition of Penalty: A penalty of ?5,00,000 was imposed on the importer under section 112(a) of the Customs Act, 1962. The penalty was based on the premise that the importer failed to ensure the correct shipment of goods as per the invoice, thus resulting in a mis-declaration. 4. Re-export of Excess Goods: The Commissioner allowed the re-export of the excess goods, i.e., 214.88 carats of cut and polished diamonds, valued at ?1,52,58,629, to the supplier after the payment of the aforementioned redemption fine and penalty. This decision was made considering the appellant's claim of a bona fide mistake by the supplier. 5. Allegation of Mis-declaration and Under-invoicing: The case originated from a specific information regarding under-invoicing of imported diamonds. Upon examination, it was found that the declared quantity was less than the actual quantity imported. The appellant argued that the excess diamonds were shipped by mistake, and there was no malafide intention. However, the adjudicating authority held that mis-declaration occurred, regardless of intent, leading to the confiscation of goods. 6. Malafide Intention and Mens Rea: The appellant contended that there was no malafide intention as the excess shipment was a bona fide mistake by the supplier. The Commissioner acknowledged that no duty was involved and allowed the re-export of excess goods, indicating no malafide intention. However, the adjudicating authority emphasized that for mis-declaration, mens rea is not required. The presence of excess goods itself constituted mis-declaration, warranting confiscation and penalty. Conclusion: The Tribunal upheld the confiscation of the goods but reduced the redemption fine from ?50,00,000 to ?30,00,000 and the penalty from ?5,00,000 to ?3,00,000, considering the appellant's claim of a bona fide mistake and the correctly declared value of the remaining goods. The appeal was partly allowed, modifying the penalties imposed while maintaining the confiscation order.
|