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TMI Blog1992 (7) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... Import-Export Pass Book Licence No. 0000684 dated 17-10-1999. In their letter dated 30-7-1990 the appellants informed the Assistant Collector that on checking the items imported in the consignment with reference to the list attached to the licence, they had discovered that even though in terms of quantity the imported H.R. Monitors valued at Rs. 4,77,126/- were covered by the list appended to the Import-Export Pass Book, the value of imported Monitors was in excess of the balance available against the relevant entry in the list attached to the pass-book. 2. On 13-9-1990 the Assistant Collector, Air Cargo Unit issued a show cause notice to the appellants pointing out various discrepancies in debiting the Pass Book and requiring them to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onitor their import requirements according to the quantity and value specified in respect of the various items by the Licensing authority. While dropping the demand for duty in respect of certain past clearances, he held that 78 Nos. H.R. Monitors and H.D./F.D. Controller Cards collectively valued at Rs. 3,42,229/- as liable to confiscation under Section 111(d) and (m) of the Customs Act, 1962. He also held that the appellants as liable to penalty under Section 112 of the Customs Act. He gave the appellants the option to redeem the goods on payment of a fine of Rs. 5 lakhs and imposed a penalty of Rs. 1 lakh on the importer. 3. On behalf of the appellants, the learned Consultant Shri A.S. Sunder Rajan appeared before us. He stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing redemption fine to the tune of Rs. 5 lakhs and penalty of Rs. 1 lakh on the importers may be set aside. 4. On behalf of the Revenue the learned S.D.R. Shri Ashok Mehta stated that even though the concerned Customs Officers are required to check the debit entries made in the import licence from time to time, it is the importer who has to ensure that any goods ordered for import are covered by the licence. He contended that the goods in question were admittedly not covered by the licence held by the appellants since 10% flexibility was not permissible when quantity was specified in the licence in respect of the goods in question. He argued that foreign exchange having been remitted towards the cost of the goods in question there wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the subject matter of this appeal were imported on account of a bona fide error on account of certain discrepancies having crept in; the debit and credit entries made from time to time and incorrect balances having been struck out. They have claimed that they had on their own detected the error and addressed a letter on 30-7-1970 to the Assistant Collector seeking permission to re-export the excess goods. 6. It is seen that the appellants do not dispute that 77 Nos. H.R. Monitors and 3 Nos. H.D./P.D. cards collectively valued at Rs. 4,83,786.21 were not covered by the import and export pass book held by them. We are not impressed by the appellants argument that they could not be held responsible for the import of the disputed goods si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porters/owner of the goods may be allowed to re-ship the goods, but in such cases the importer/owner of the goods will be liable to pay fine/penalty etc. Therefore, the importers should, in their own interest, ensure that what is being imported by them into the country is in strict conformity with the licence description in every respect and the consignment is neither in excess of the licenced value or quantity limitations nor different in any form what is authorised to be imported. Having regard the provisions of para 118 of the Hand Book of Procedures April, 1990 -March, 1993 (Import and Export Promotion) and taking into account the fact that the cost of the goods in terms of foreign exchange has been remitted we are of the view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 -1978 (2) E.L.T. (J 159) (S.C.) 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 conscious disregard of its obligation; but not, in cases where is a technical or venial breach of the provisions of the Act or where the breach flows ..... X X X X Extracts X X X X X X X X Extracts X X X X
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