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TMI Blog1988 (4) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... rn approached the licensing authority and the licensing authority had agreed to suitably amend the licences and make them valid for R.P.A. also. Accordingly, the licences were sent and were duly endorsed by the licensing authority for R.P.A. But due to a clerical mistake, this one particular licence somehow was left out and this fact remained unnoticed at the stage of opening of letter of credit also. 5. As a consequence, the importation took place against the unamended licence as it was. Thus, this technical violation was unwillingly committed. The Collector also has observed in his order that had they approached the licensing authority the said authority would have in the normal course agreed to amend the licence and make it valid for R.P.A. The Collector has, however, imposed a penalty of Rs. 19,922/- approximately as no valid licence could be produced in terms of the licence bond against which the goods had been cleared. 6. It was their submissions that as it was a case of a bona fide mistake, further leniency was required to be shown and they would pray that the penalty may be reduced substantially or if the Tribunal thinks it appropriate, the case may be amended on a warn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cite the case of Messrs. Janata Traders, Bombay v. Collector of Customs, Bombay [1987, 30 ECR, 685 SBA = 1988 (34) E.L.T. 65] in which it was held that penalty cannot be imposed when mens rea has not been established since penalty proceedings are quasi-criminal proceedings. 18. Sri Basu Roy stated that while it was open to the Collector to have taken action in terms of conditions of the bond and to appropriate the bond amount or a part thereof, it was not open to him to impose a penalty under Section 112. 19. Sri M.C. Thakur, SDR, stated that the case cited by the learned counsel was a case of valuation, whereas the present case is that of violation of Import Trade Control Act and admittedly in this case, there was no valid licence to cover the goods. Hence, penalty could be imposed, ipso facto, under Section 112. 20. Although the learned Collector had indicated that he was taking a lenient view and since the goods were not available for confiscation, he was imposing a personal penalty, it was his contention that the order must be read as a whole and when so read, it would be apparent that actually the Collector had imposed the penalty because the goods had been imported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor was justified in his finding that the imported goods were rendered liable to confiscation. Hence they were ipso facto liable to penalty also. Since the goods had already been released and were therefore not available for confiscation the Collector merely imposed a penalty. 27. The operative portion of the order of the Collector should be read to mean that it was a penalty for unauthorized importation of goods. In fact the Collector has already taken a lenient view. 28. The learned counsel stated that the Tribunal itself has taken this view in a number of cases that mens rea was the essential ingredient of Section 112. In this connection he would like to draw attention to the case of Janata Traders reported in 1987 (30) 685 CEGAT (SB.A) in which it was observed inter alia that penalty proceedings are quasi-criminal proceedings and the revenue has not been able to establish that there was mens rea on the part of the appellant. The Hon ble Supreme Court in the case of Commissioner of Income-tax, West Bengal v. Anwar Ali had held that before penalty can be imposed the entirety of the circumstances must reasonably point to the conclusion that the disputed amount represented inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of unauthorized importation of goods. 34. That such a penalty was indeed imposable and the appellant was liable to the same is clear from the fact that the goods had been admittedly imported without a proper licence and were therefore liable to confiscation under Section 111(d) of the Customs Act. 35. As a matter of fact the whole case boils down to the plea of leniency put forth by the appellants. 36. Technically of course the learned counsel for the appellants is correct in pointing out that once having released the goods on a bond it was open to the Collector to proceed as per the terms of the bond and realise the amount in accordance with the same. That however does not mean that no other action could be taken. In my opinion it was open to the department to take penal action in addition to enforcing the terms of the bond. In the instant case neither the appellant had a licence at the time of importation nor could he procure one within the time allowed. The net result was that the goods were rendered liable to confiscation. These having been released in terms of bond, the Collector could either enforce the terms of the bond and/or impose a penalty. The very fact that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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