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TMI Blog2001 (8) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be imported in violation of policy and goods are liable for confiscation under Section 111(d) of the Customs Act, 1962. Apart from ordering for absolute confiscation of the impugned goods he imposed penalty of Rs. 1 lakh under Section 112(a) of the Customs Act, 1962. The appellant has come in appeal on questioning the penalty under Section 112(a) of the Act on the ground that neither he was importer nor in any way connected with the importation of the said goods. 3. Shri Kumaraswamy, learned Consultant, appearing for the appellant submitted that no evidence was brought on record to show that there was any attempt on the part of the appellants either in importing the goods or placing the orders or making the payment for importat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Court Room Highlights Page No. 154." 4. On the other hand, Shri Thomas appearing for the Revenue justified the action of the Department in imposing the penalty. He drew my attention to the findings of the Commissioner in imposing the penalty and read the relevant finding portion which is as under: - "From the statement dated 25-3-1998 of Shri Krishnakumar, it is clear that he attempted to find a prospective buyer for the imported goods. This is in clear violation of the Import Policy mentioned above. Morever, the correspondence recovered from M/s. Kay Kay Exports reveal that an attempt was contemplated to make the payment for the imported plant unauthorisedly out of the amount due on account of the exported yellow clamps sent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lbert Backer, Netherlands, no grounds have been made in the investigation to render them liable for penalty under the Customs Act, 1962. Therefore, I drop further proceedings against them." 5. I have considered the arrival submissions and pursue the case law. It is settled position that penalty should not be imposed for the sake of levy. Penalty is not a source of revenue. Imposition of penalty depends upon facts and circumstances of each case. In the case of Union of India v. Sampath Raj Dugar reported in 1992 (58) E.L.T. 163, Supreme Court held that in case importer is not paying for the goods and abandoned them, the exporter continues to be the owner of the goods and entitled to ask for the re-export unless proved to be a party to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port there was absolutely no intention to import the goods. Supreme Court in the case of Akbar Badruddin Jiwani v. Collector of Customs [1990 (47) E.L.T. 161 (S.C.)] held that the burden lies on the Customs Department to show that the appellant has acted dishonestly or contumaciously or with a deliberate or distinct object of breaching the law. 6. In view of the above observations it is clear to attract penalty intention should be coupled with the positive action. Mere intention to import the goods itself is not sufficient to impose penalty. The Department has made out a case only on the ground that there was an attempt to find a prospective buyer for the imported goods. As can be seen from the records nothing incriminating evidence w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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