9911796707
TMI Blog2009 (3) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ported the above item as sub-contractors of M/s. Oil and Natural Gas Corporation (ONGC) for use in relation to onshore mining of petroleum in the State of Assam. The truck was cleared under a bill of entry dated 6-1-2007. Prior to the import, the appellants by letter dated 28-12-2006 informed the jurisdictional Deputy Commissioner of Customs about their intention to import the above item. In that letter, they also requested for waiver of the requirement of homologation certificate. They also requested the Director-General of Foreign Trade (DGFT) for permission to import "medium service land carrier logging truck" without homologation certificate. The DGFT granted this permission by letter dated 18-9-2007, the operative part of which reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed vehicle imported should not be older than three years from the date of manufacture. Other conditions mentioned under the above Notes are not relevant to the present case. The departmental authorities noted that the truck imported by the appellants was older than three years from the date of manufacture, which was in contravention of condition (a) of Note 1 (II) of the Import Licensing Notes. It was further noted that no waiver of such condition had been obtained from the DGFT. It was on this basis that the show-cause notice was issued, proposing confiscation of the goods under Section 111(d) of the Customs Act, 1962 and penalty on the importer under Section 112(a) of the Act. These proposals were contested by the party. The Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and import policy shall be as specified in ITC (HS) notified by DGFT, as amended from time to time." Para 2.17 of the FTP, relied upon by the learned Counsel, has got to be read with para 2.1 ibid. Import of second-hand special purpose vehicles like the truck in question was subject to the conditions laid down under the Import Licensing Notes attached to ITC (HS) Chapter 87. Some of these conditions were specifically noted by the appellants and they applied for and obtained waiver from the DGFT. The very first condition was that the imported second-hand motor vehicle should not be more than three years old with reference to the date of manufacture. It is difficult to believe that this condition was not within the knowledge of the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confiscation under Section 111(d) was sustained. However, the penalty imposed on the importer under Section 112(a) of the Act was set aside in the facts and circumstances of that case. In doing so, the Bench was following the apex Court's ruling in Hindustan Steel Ltd. v. State of Orissa - 1978 (2) E.L.T. J159 (S.C.) followed in Akbar Badruddin Jiwani v. Collector - 1990 (47) E.L.T. 161 (S.C.). In those cases, the Hon'ble Supreme Court held that the discretion to impose a penalty must be exercised judicially and that penalty would ordinarily be imposed in cases where the party acted deliberately in defiance of law, or was guilty of contumacious or dishonest conduct, or acted in conscious disregard of its obligation; but not in cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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