2009 (5) TMI 106 - AT - Customs

Confiscation, redemption fine, penalty - the only question to be decided in this case is whether the goods are liable to confiscation or not in view of the fact that the goods imported were of Indian origin but declaration of country as origin as Dubai. This is clearly an omission which renders the goods liable to confiscation. Similarly, manipulating the documents after it was noted is also a very serious omission on the part of appellants. For confiscation of the goods under Section 111 and for imposition of penalty under Section 112 of Customs Act, 1962, mens rea is not required. Therefore there is no need to go into bona fide of the activities at all. - It appears that in the present case there is no revenue implication confiscation is justified - fine is reduced penalty set aside

Summary

Issues Involved:
1. Misdeclaration of country of origin.
2. Confiscation and redemption of imported goods.
3. Imposition of penalties on the appellants.
4. Consideration of export performance for NFE (Net Foreign Exchange).

Detailed Analysis:

1. Misdeclaration of Country of Origin:
The primary issue was the misdeclaration of the country of origin in the bills of entry for the imported ready-made garments. The appellants, M/s. Haria Exports Ltd., had shown the country of origin as Dubai, whereas the goods were of Indian origin and had been exported earlier. The appellants argued that this was a mistake due to the commercial invoices raised by the Dubai importer. The Revenue contended that this misdeclaration was deliberate to show the goods as fresh imports and achieve higher NFE.

2. Confiscation and Redemption of Imported Goods:
The adjudicating authority confiscated the imported goods and allowed them to be redeemed on payment of a fine of Rs. 25 lakhs. The Tribunal's Member (Technical) upheld the confiscation and fine, stating that the goods were liable to confiscation under Section 111 of the Customs Act, 1962, due to the misdeclaration. Member (Judicial) agreed that the goods were technically liable for confiscation but found the redemption fine excessive, reducing it to Rs. 1 lakh, considering the bona fide mistake and lack of profit motive.

3. Imposition of Penalties on the Appellants:
Penalties were imposed on M/s. Haria Exports Ltd. (Rs. 10 lakhs), its Director Shri Kantilal Haria (Rs. 5 lakhs), and Shri G. Narayananswamy (Rs. 5 lakhs). Member (Technical) upheld these penalties, citing deliberate misdeclaration and document manipulation. Member (Judicial) disagreed, finding no justifiable reason for the penalties, given the bona fide mistake and lack of profit motive. The Third Member concurred with Member (Judicial), setting aside all penalties.

4. Consideration of Export Performance for NFE:
The adjudicating authority disallowed the export performance of the confiscated goods for considering the NFE. Both Members (Technical and Judicial) upheld this decision, agreeing that the confiscated goods should not be considered for NFE calculation.

Final Judgment:
The majority order partially allowed the appeal of M/s. Haria Exports by reducing the redemption fine to Rs. 1 lakh and setting aside the penalties. The confiscated goods would not be considered for NFE. The appeals of Shri Kantilal Haria and Shri G. Narayananswamy were allowed, setting aside the penalties imposed on them.