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TMI Blog1991 (2) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... fer her residence from London to India, she decided to import a new BMW car under transfer of residence rule as per Import Policy 1988-91. After purchasing one new BMW car the appellant made an application for CCP in form as per guideline given by the Indian Embassy at London. On 23-11-1989, she deposited in the office of Indian Embassy, London 18.52 (equivalent to Rs. 500/-) as prescribed fee for CCP application for import of a car. Further she made an affidavit as per guideline given in the Import Policy 1988-91 before the Attachee (Consulate) High Commission of India, London on 23-11-1989. On 30-5-1990, the appellant booked her car to Calcutta by air freight through Jordan Airlines vide Airway Bill No. 512-1923-2920. The appellant arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us that the Policy of 1988-91, as originally stood, permitted the import of the car and the CCP would be issued to those who have stayed in England for a period of one year and had purchased a car. He further contended that in the meanwhile the Policy was further amended and the new Policy came into force with effect from 1-4-1990. As per this new Policy, the car in question could be imported only if the appellant had stayed in England for a period of two years and the said car was in use for a period of one year. Shri Sunderrajan contended that before coming into force of this Policy w.e.f. 1-4-1990, the appellant had already purchased the car and had made arrangements to import the car into India, as she wanted to settle down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Supreme Court decision, the appeal may be allowed. 4. Shri M.N. Biswas, the learned SDR appearing on behalf of the respondents contended before us that as per the new Policy which came into force w.e.f. 1-4-1990, two conditions are to be fulfilled by the appellant. The first condition is that the appellant should have stayed in England for two years and the second condition is that the car in question should have been in use at least for a period of one year in England. He also contended that the car was not in use in England for this period of one year. Shri Biswas contended that the appellant also could not get the CCP with respect to this car by applying to the Joint Chief Controller of Imports Exports. Shri Biswas pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard both the sides. The point that arises for our determination is whether the imposition of penalty of Rs. 5 lakhs and redemption fine of Rs. 10 lakhs on the appellant in the facts and circumstances of the case is justified. 6. It is an admitted fact that as per the Policy of the Government, which came into effect on 1-4-1990, cars could be imported by a person from U.K. who had stayed there for a period of two years and the car intended to be imported should have been in use in U.K. for at least one year, which has not been fulfilled in this case. At the same time, when the Policy was announced for the first time for the period of 1988-91, this condition of use of the car for a period of one year was not there. The case of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the huge amount of duty, the car should be released on a token fine of Rs.10,000/- but learned Additional Collector imposed a huge fine of Rs. 10 lacs and Rs. 5 lacs as penalty. This apparently means that the appellant herself while pleading in her letter that a token fine may be imposed was acknowledging that a reasonable fine may imposed on her. 8. Reliance was placed on the decision of the Supreme Court in the case of Akbar reported in 1990 (28) ECR 145 (SC). The facts of that case are not applicable to the facts of this case. In that case, the appellant therein imported for home consumption stone slabs under a bona fide belief and it was found that they were marble and not stone slabs. In that case, the Tribunal had come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (29) E.L.T. 904 = 1987 (11) ECR 369 CEGAT, wherein it has been held that in imposing penalty the requisite mens rea has to be established. It has also been observed in Hindustan Steel Ltd. v. State of Orissa - 1970 (1) SCR 753 = ECR C 321 SC by this Court that :- The discretion to impose a penalty must be exercised judicially. A penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct, or acts in a conscious disregard of its obligation; but not in cases where there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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