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TMI Blog1991 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... r through line No. 12 and filed a bill of entry wherein it was shown that 42 pcs of piston which are parts of excavator were imported by them. But at the time of examination of the goods, on duplicate bill of entry it was found that in addition to the above 42 pcs of piston an excess quantity of 55 pistons were also found in the consignment which was not shown in the invoice. But the appellants stated through their letter dated 3-2-1989 that the extra item appears in the purchase order placed with the Overseas Suppliers although the same does not figure in the supplier s invoice. They produced a letter from the suppliers stating that by mistake the suppliers had supplied additional 55 pcs of pistons against the consignment. It was also stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the appellants had no guilty knowledge. Sri Dhar also brought to my notice that the learned Collector of Customs (A) had stated in the order that the appellants do not appear to have any intention to commit any fraud. Relying on the above circumstances Sri Dhar pointed out before me that there was no intention to commit any offence and the imposition of penalty under Section 112(a) of the Customs Act is not warranted in the circumstances of this case. In support of his contention he relied on the decision of the Tribunal reported in 1990 (46) E.L.T. 508 - Usha Micro Process Controls Ltd v. Collector of Customs. In that case the Tribunal held that the importation of the hardware is authorized and regarding the importation of software ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were violated by the appellants. It was also contended that since the penalty is below the sum of Rs. 10,000/-, the appeal itself does not merit to be admitted in view of the provisions of Section 129A(d) proviso (iii). 7. I have considered the submissions made by both sides. In view of the fact that an important question of law with respect to the infliction of penalty is involved in this case, and more particularly, in view of the decision of the Supreme Court reported in 1978 (2) E.L.T. J 159,1 proceed to hear both sides and the appeal is accordingly admitted inspite of the fact that the penalty involved in this case is below Rs. 10,000/-. 8. It is now seen that the appellants had mentioned in the invoice that 42 pcs of pistons were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jiwani -1990 (47) E.L.T. 161 SC. In that decision their Lordships of the Supreme Court at paras 57 and 59 held as follows : 57. Before we conclude it is relevant to mention in this connection that even if it is taken for arguments sake that the imported article is marble falling within Entry 62 of Appendix 2, the burden lies on the Customs Department to show that the appellant has acted dishonestly or contumaciously or with the deliberate or distinct object of breaching the law. 59. We refer in this connection the decision in Merck Spares v. Collector of Central Excise Customs, New Delhi, Shama Engine Valves Ltd., Bombay v. Collector of Customs, Bombay and Madhusudan Gordhandas Co. v. Collector of Customs, Bombay wherein it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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