9911796707
TMI Blog1988 (9) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the import is unauthorised. As the issue involved in all these appeals is identical, the same are taken up for decision in one common order. 2. The main argument of the appellants (i.e. department) is that the impugned goods imported by the respondents as Designer s Kit under REP Licences against entry No.: G of Column 4 - Export Product Group D-2.1(ii) of Appendix 17 of the ITC Policy A.M. 1985/88 in fact are not Designer s Kit and as such are not covered by the REP Licences under which the same were imported. The appellants further contend that the impugned goods are covered only under Serial No. 6(12) of Appendix 1 Part A and Serial No. 121 of Appendix 2 Part B. Hence the import of the impugned goods is unauthorised in the abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for personal hearing. The respondents in their defence submissions as well as in their oral submissions at the time of personal hearing have contested the arguments put forth by the appellant in support of their appeals for confiscation of the impugned goods and for taking penal action against them. The gist of the submissions made by them is as follows : (1) the implication of the Collector of Customs, Madras, orders for filing the review appeals is not clear; (2) the import of the same goods is being allowed under the same classification for several years and has become an established practice of the Custom House since 1982; (3) since 1982 these items have been allowed clearance under the REP Licence as Designer s Kit; therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since 1982 till the present imports made during 1987 in support of their say that it had become an established practice of the Custom House, Madras, to classify the impugned goods as Designer s Kit and to allow clearance of the same under the REP Licences issued in this behalf. All previous imports of these goods were allowed clearance under the same classification. Since the classification of the impugned goods as designer s kit was followed for a number of years beginning from the year 1982 till the present imports during 1987, there is a force in the say of the respondents that it had become an established practice of the Custom House. Hence the Custom House authorities could not have unilaterally altered this practice without any spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conduct of such an individual or firm and hence the guilty conduct of such individual or firm has to be established on record. As held by Calcutta High Court in the case of N.G. Goray v. Union of India, the imposition of penalty is a quasi-criminal proceeding and hence the statutory rule of onus is applicable in this case also. The entire onus of establishing the offence rests with the Customs Authorities. 9. If we clearly follow the provisions of Customs Law, it will be clear that two different types of offences are envisaged under the very scheme of Customs Act, 1962 : (1) Offences in rem - i.e. offences involving the goods (2) Offences in personam - i.e. offences involving the individual. 10. In case of an offence in rem, mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While defaulting goods can be held liable to confiscation for a mere technical breach of law a person or firm cannot be penalised for the same reason unless, the fact of his guilty knowledge is fully established in the offence. In other words unless the mens rea or criminal intent of the individual is clearly brought out and established on record, the question of imposition of penalties will not arise. In this connection I also rely on Supreme Court decision in the case of Radha Kishan Bhatia v. Union of India (AIR 1965 SC 1072 page 1074,1075), and also on Calcutta High Court decision in the case of James David Crighton v. S.K. Srivastava (AIR 1969 Cal. 260 Page 266). Judging the impugned case from this angle, I find that there is hardly an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no remedy available at this stage and we have to be content with fait accompli. As the impugned goods involved in dispute are out of Customs charge and not available for confiscation no action can be taken against the same at this stage. No case for imposition of penalties on the appellants has also been clearly and systematically made out on record. The point relating to mens rea or criminal intent on the part of the respondents has not been correctly and cogently established by the appellants (i.e. the department). Hence all the 29 appeals filed by the appellants are liable for rejection as infructuous. 15. I also rely on CEGAT, West Regional Bench, Bombay in the case of Pragat General Agencies, Bombay v. Collector of Customs, Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
