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TMI Blog1997 (11) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... Shipping Bill No. 000496 dated 6-7-1993 filed through their Customs Clearing Agent Appellants sought the export of 15,240 kgs. of Indian CTC tea to Moscow. On examination of the goods by Customs on 12-7-1993 before their export it was found that the goods were not in conformity with the goods as declared in the Shipping Bill and representative samples were drawn and sealed in the presence of the exporter s authorised representative and forwarded to the Tea Board for testing, the test report, inter alia, indicated that the samples consisted more of powdered stems and less of leafy matter and that the goods did not conform to the P.F.A. specifications for tea in respect of crude fibre. Tea Board also stated that as per the opinion of their te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s inspected to meet with the description of the order placed on them. M/s. Swill Ltd. had also appointed M/s. Blacket Co. Ltd., Calcutta as the Clearing Agents. Ld. Advocate also referred to the correspondence exchanged between the appellants and M/s. Swill Ltd., about the arrangements being made for the export of the consignments of tea. According to the ld. Advocate the appellants had acted in good faith in entrusting the entire job to M/s. Swill Ltd. and it was M/s. Swill Ltd. who were responsible for the supply of the inferior quality of the tea and M/s. Swill Ltd. had in fact cheated and played a fraud on the appellants. Appellants had all along been acting in a bona fide manner and there was no mens rea on their part. They were the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y disproportionate. We find that in the case of Hindustan Steel (supra) the penalty under Orissa Sales Tax Act, 1947 was held not imposable on the assessee as the assessee was under a genuine belief that it was not a dealer. In the Anwar Ali case (supra) the question was whether the mere fact that the explanation given by the assessee in respect of a certain amount was proved to be false would give rise to the inference that the disputed amount represents his income. The Apex Court had observed that since proceedings under the Income-tax Act, 1922 are of a penal nature, the burden was on the department to prove that the receipt of the amount in dispute constitutes the income of the assessee. Any finding that a particular receipt was income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (43) E.L.T. 336] the Tribunal held that penalty under Section 112 will not be justified in the absence of deliberate misdeclaration. We find that the facts in the cases relied on by the appellants counsel are quite different from the facts of the case before us. None of the cases involved the attempted export of goods which did not conform to the standards laid down under Section 7 of the Prevention of Food Adulteration Act, 1954. Under Section 114(i) of the Customs Act any person who does or omits to do any act which would render the goods attempted to be exported liable to confiscation under Section 113 will be liable to a penalty not exceeding five times the duty of the value of the goods. We are unable to agree with the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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