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TMI Blog2015 (11) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... e to attract the penalty. Thus applying these provisions to the facts at hand, the CHA failed to ensure that the goods were loaded on to the vessel only after ‘let export order’ was obtained, thereby making the goods liable to confiscation under section 113(g). For the omission on the part of CHA, he is liable to penalty under section 114(iii). - There is nothing in the language of the provisions of section 114 of the Customs Act, 1962, to suggest that mens rea is essential for imposition of penalty . Mere ‘act or omission to act’ would suffice for imposition of penalty if such act or omission violates statutory provisions. Proceedings under section 114 of the Customs Act are not criminal proceedings but quasi -judicial proceedings and hence mens rea is not required to impose penalty under the said section - identical matter was considered by a Division Bench and the imposition of penalty on the CHA was upheld. The said decision of the Division Bench would prevail over the decisions of Single Member Bench. In view of the above, I am of the considered view that the appellant is liable to penalty under Section 114 of the Customs Act. - However, penalty is reduced - Decided partly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on the decision of this Tribunal in the case of Mohini Organics Pvt. Ltd., Vs. CC (Exports), Nhava Sheva - 2009 (240) ELT 589 (Tri-Mumbai), N Karim Sons Vs. CC (Exports), Nhava Sheva - 2010 (251) ELT 444 (Tri-Mumbai) and DCM Shriram Industries Ltd., vide Final Order No.A/239 to 241/10/SMB/C-IV dated 01/06/2010 in support of its contention. 4. The learned Dy. Commissioner (AR) appearing for the Revenue, on the other hand, strongly refutes the contentions raised by the CHA. He points out that in the impugned order, the adjudicating authority has given a clear finding in para 13 thereof, wherein he has observed as follows: 13. The exporter had procured the container, booked space in the vessel which was scheduled to depart on 09/10/2008 for their export cargo; had got the shipping bill Nos. 6713743 dated 30/09/2008, 6713773 dated 30/09/2008 and 6716701 dated 01/10/2008 filed through their CHA, which also contain the name of vessel and other particulars related to the export. Having booked the space on the vessel scheduled to depart on 09/10/2008, as well as provided the containers for export through their CHA, it was incumbent upon them to have remained proactive an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed which are briefly as under:- Customs clearance formalities for goods meant for export have to be fulfilled by presenting what are termed as shipping bills and other related documents to the export wing of the custom houses or EDI service Centres. The appraising staff in the Custom House/Air Cargo Complex checks the declarations to assess the duties/cess if leviable, propriety of export incentives where claimed under different schemes like duty drawback or duty free exemption schemes etc. Appropriate orders for examination before shipments are allowed are given on the Shipping Bill. The staff in the docks/cargo complexes/ICDs examines the goods meant for export on percentage basis, and allow shipment if there are no discrepancies/ mis-declarations etc., and no prohibitions/violations come to light. Appropriate penal action as per law is initiated where any fraudulent practices get detected during initial stage of scrutiny or at the time of examination etc. These provisions similarly help customs to regulate the outflow of the goods out of the country and enable them to subject the goods to proper checks before allowing final exit out of the country by sea/air/land/rail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dutiable goods, other than prohibited goods. to a penalty not exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater; (iii) in the case of any other goods, to a penalty not exceeding five times the amount of drawback claimed or one thousand rupees, whichever is the greater. Thus any act or omission to do any act, which renders the goods liable to confiscation attracts penalty. The said provision does not speak of the requirement of any mens rea on the part of the person committing the act or omission. Mere act or omission would suffice to attract the penalty. Thus applying these provisions to the facts at hand, the CHA failed to ensure that the goods were loaded on to the vessel only after let export order was obtained, thereby making the goods liable to confiscation under section 113(g). For the omission on the part of CHA, he is liable to penalty under section 114(iii). 5.5. The learned Counsel for the CHA has relied on certain case laws in support of his contention that the CHA is not liable for penalty. In these cases, the vessels set sail prior to the scheduled date of departure and the CHA did not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfiscation of the goods is not necessary for this penalty. A mere liability of the goods to confiscation is enough. 5.7. The same issue came up for consideration before this Tribunal in the case of LCL Logistics (India) Pvt. Ltd. [2011(273) ELT 571] and it was held that when goods loaded and taken out of India without permission of the proper officer, then the goods are liable to confiscation and penalty is imposable on the CHA even when there was no mala fide intention on his part. 5.8. The Hon ble apex court in the case of Gujarat Travancore Agency Vs. CIT, Kerala [1989 AIR 1671] while considering certain provisions of the Income Tax Act, held as follows:- 3. The creation of an offence by Statute proceeds on the assumption that society suffers injury by the act or omission of the defaulter and that a deterrent must be imposed to discourage the repetition of the offence. 4. Unless there is something in the language of the statute indicating the need to establish the element of mens rea it is generally sufficient to prove that a default in complying with the statute has occurred. A similar view was held by the Honble apex court in the case of SEBI vs. Shrir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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