2023 (5) TMI 21 - AT - Customs

Confiscation - redemption fine - penalty - import of Hydrogenated Vegetable oils (Vanaspati Ghee) - quantity of 45,120 Kg was found to be adulterated and unfit for human consumption - non-confirmation to the standards laid down under item No. A-19 of Appendix B of the PFA Rules, 1955 - HELD THAT - The fact that these consignments were inspected before shipment from the foreign country and respective authorities have issued certificates of analysis, which prove bona fides of the appellant importer. It is not the case of the department that the appellant importer was aware of the fact that the impugned goods were not conforming to the standards. Therefore, it cannot be held at least that the appellants had mens rea. In terms of Notification No. 3(RE-2001) 1997-2002 dated 31.03.2001 that the products will have to comply with the quality and packaging requirements as laid down under PFA Act and that compliance of these conditions is to be ensured before allowing customs clearance of the consignments. We understand that customs authorities have detained these consignments for this reason and have imposed penalties and fine after following due process of law as contained in board circular No. 58/2001-CUS dated 25.10.2001 vide which it is directed that if the products fails the test, the customs authorities will ensure that the goods are re-exported out of the country by following the usual adjudication procedure or destroyed as required under the relevant rules. The action of the department in proposing for confiscating the goods and imposition of fine and penalties is legally tenable - the quantum of penalty and fine should be commensurate with the offence committed. In the instant case, it is established that the appellant has not violated the provisions intentionally and that there was no mens rea or any motive that can be attributed to the appellant. In this case impugned goods have been undoubtedly rendered liable for confiscation and accordingly the confiscation and imposition of penalty under section 112 is legal and proven. However, looking into the facts and circumstances of the case and the long history of litigation of the case, it is found that ends of justice could be met if the redemption fine and penalty are suitably imposed in respect of appeal no. C/192/2008 - Coming to the other appeal i.e. C/736/2007 it is found that in the instant case no redemption fine has been imposed and the goods were allowed to be re-exported imposing a penalty under section 114 A has been imposed. We find that penalty under Section 114 A is invariably linked to the quantum of duty evaded and therefore penalty under Section 114 A cannot be imposed in isolation. As there is no demand of duty in the impugned case, the imposition of penalty under Section 114 A cannot be sustained. Appeal is partially allowed by restricting the redemption fine to Rs. 3,00,000/- and penalty under Section 112 to Rs. 1,00,000/-. Other Appeal No. C/736/2007 is allowed.

Summary

Issues:
The judgment involves issues of confiscation, penalty imposition, compliance with PFA Act standards, and the applicability of Sections 112 and 114 A of the Customs Act, 1962.

Confiscation and Penalty Imposition (Appeal No. C/736/2007-DB):
The case involved the import of Hydrogenated Vegetable oils where a portion was found adulterated. Initially, a penalty was imposed under Section 114 A of the Customs Act, 1962, but the Tribunal set it aside. The High Court remanded the case back to the Tribunal, leading to further appeals and restoration applications. The appellant argued that the goods were not stray imports and discrepancies were minimal compared to total imports. The Tribunal found that the importer was not aware of non-conformity to standards and no mens rea was established. While the department argued for confiscation due to PFA Act violations, the Tribunal concluded that the penalty and fine should be proportionate to the offense. Ultimately, the Tribunal allowed the appeal, stating that penalty under Section 114 A could not be imposed without a duty evasion demand.

Compliance with PFA Act Standards (Appeal No. C/192/2008-DB):
In this case, Bakery Shortening imports were found to not conform to PFA Act standards. The Tribunal reduced the redemption fine and set aside the penalty initially imposed. The High Court remanded the matter back to the Tribunal for re-examination. The appellant highlighted the importer's regularity and minimal discrepancies in imports. The Tribunal found no mens rea on the part of the appellants and emphasized the need for compliance with quality and packaging requirements. While the department argued for confiscation due to PFA Act violations, the Tribunal concluded that the penalty and fine should be commensurate with the offense. The Tribunal partially allowed the appeal by restricting the redemption fine and penalty.

Conclusion:
The Tribunal, after considering the facts and legal provisions, allowed Appeal No. C/736/2007 and partially allowed Appeal No. C/192/2008 by adjusting the redemption fine and penalty amounts. The judgment emphasized the importance of proportionality in penalty imposition and highlighted the lack of mens rea in the importer's actions.