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TMI Blog2013 (10) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... ejecting the appeal of revenue as held by Hon'ble Member (Judicial). - Customs- 283 of 2018- Cus(DB) - - - Dated:- 30-7-2013 - Archana Wadhwa And Manmohan Singh, JJ. For the Appellant : Shri P K Sharma, AR For the Respondent : Shri Prabhat Kumar, Adv. PER : Archana Wadhwa Being aggrieved with the order passed by Commissioner (Appeals) vide which he has set aside the confiscation of the imported painting with an option to redeem the same on payment of redemption fine of Rs.1.50 lakh and has set aside the penalty of Rs.2 lakh imposed upon the importer. Revenue has filed the present appeal. We have heard Shri P.K. Sharma, learned AR for the Revenue and Shri Prabhat Kumar, learned advocate for the respondent assessee. 2. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment in documents after their presentation. To say that "the request for amendment to bill of entry cannot be entertained" would render section 149 irrelevant. This cannot he accepted at all. The appellant requested for rectification of its mistake before examination of the goods and there was nothing wrong in making such request. The order rejecting such request cannot be sustained and is therefore set aside with consequential relief, if any to the appellant. Appellant's appeal is therefore allowed." 5. As is seen from the above, the Commissioner (Appeals) has examined the provisions of Section 149 of the Customs Act, 1962 and has rightly observed that if such amendment are not allowed, Section 149 would lose its relevance and would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... painting in the Bill of Entry. On examination of the invoices, we find that the same look alike except that in the column particulars, the title of painting stand given as 'Rajasthan' in one invoice and as ' Bindu ' in another invoice. The said declaration in the particulars column, can be missed by any person and both the invoices can be presumed to have been issued only in respect of one painting. We also note that payment for both the painting stand already remitted to the foreign supplier through Bank on 24.7.2006 and 3.5.2006. We also note that first check order was passed on 18.8.06 whereas the request for amendment was made by the importer on 17.8.2006. In view of all the above factors, we hold that this is not a case of intentional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r two paintings. It was only when appellant came to know about order of first check, it requested for amendment of Bill of Entry under section 149 of Customs Act before examination could be undertaken. Department did not accept their request at the time of passing of Order-in-Original. However Commissioner (Appeals) accepted the amendment as bonafide mistake and allowed amendment under section 149 of Customs Act. However Revenue therefore comes in appeal before Tribunal against this order. 11. Section 149 of Customs Act, 1962 provides for amendment in documents after presentation thereof and the provision reads as under: "149. Amendment of documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may, in his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of 2006 (5) SCC 361 Chairman, SEBI Vs. Sriram Mutual Fund to support its contention of detection of violation warranting penal action. That is a case of mis -declaration of quantity and value. They have also relied on judgment Madras High Court reported in 2007 (207) ELT 346 (Mad.) wherein it is held that in case of mis -declaration and under valuation of goods " mens rea is not required for imposition of punishment under Customs Act, 1962". Similarly Hon'ble Supreme Court in the case of M/s Pine Chemical Suppliers 1993 (67) ELT 25 (SC) has also held that in case of mis -declaration of description and value of Imported goods, question of mens era not relevant for liability to confiscation and penalty under section 111(m), 112 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wledge of Respondent. 18. In view above of decision, I hold that confiscation was justified and called for giving option for RF and composition of penalty. No interference to R.F adjudicated is warranted. However keeping in mind that RF is remaining untouched by my reasoning given above, penalty is reduced from Rs.2,00,000/- to Rs.1,00,000/-. 19. Appeal partly allowed to the extent of reduction of penalty only. Manmohan Singh, Member (T) In view of above difference in opinion of both the members in this appeal, under mentioned questions arise for reference to the Hon'ble President to resolve the same. Registrar is required to place both the files before him: DIFFERENCE OF OPINION Whether on the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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