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TMI Blog2019 (7) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... alty - HELD THAT:- Section 112(a) of the Act provides that any person, who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, shall be liable to pay penalty not exceeding the value of the goods or ₹ 5,000/-, which is greater. Mens rea is not an essential element/ingredient to impose penalty, unless the language of the statute indicates the need to establish the same - The Tribunal has reduced the penalty from ₹ 50,000/- to ₹ 25,000/-. There is no sufficient ground to further reduce the amount of penalty. Thus, non-production of EPR-Authorisation under the Rules at the time of import of the goods constitutes sufficient ground for confiscation of the goods under Section 111(d) of the Act - appeal dismissed. - Customs Appeal No. 1 of 2019 - - - Dated:- 23-7-2019 - MR C. K. ABDUL REHIM AND MR R. NARAYANA PISHARADI, JJ. For The Appellant : ADVS. SRI. P. A. AUGUSTIAN, SMT. CIMY VARGHESE, SMT. LINDA. M. J. AND SRI. M. A. BABY For The Respondent : ADV. SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE AMP; CUSTOMS JUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid order of the Tribunal is challenged in this appeal. 4. The memorandum of appeal contains various grounds on which the order of the Tribunal is challenged. Subsequent to the order of the Tribunal, the Commissioner had rejected the application for amendment of the Bill of Entry. The memorandum of appeal contains grounds of challenge also against the aforesaid order of the Commissioner. However, learned counsel for the appellant pressed for hearing only the question of law relating to confiscation of goods by the customs authority at the time of import itself on the ground of nonproduction of EPR- Authorisation and the consequent imposition of redemption fine and penalty on the company. Therefore, the only substantial question of law for consideration in this appeal is the following: Whether non-production of Extended Producer Responsibility - Authorisation under the Rules at the time of import of the goods is a sufficient ground for confiscation of the goods under the Customs Act, 1962 (hereinafter referred to as 'the Act')? 5. Heard the learned counsel for the appellant and also the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It follows that the company had the obligation to obtain EPR-Authorisation for import of the printers. 11. Learned counsel for the appellant contended that it is necessary to produce EPR-Authorisation only at the time of clearance and transport of the imported goods and that such authorisation is not necessary for mere import of goods. Learned counsel would contend that the customs authority had no power to confiscate the goods which were imported without EPR-Authorisation. 12. Section 111(d) of the Act provides that any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under the Act or any other law for the time being in force, shall be liable to confiscation. Section 2(33) of the Act defines the expression 'prohibited goods'. It states that 'prohibited goods' means any goods the import or export of which is subject to any prohibition under the Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of this Court in Customs Appeal No.19/2017 (Commissioner of Customs v. M/s Atul Automations Private Limited) and contended that production of EPR-Authorisation is necessary only at the time of clearing of the imported goods. We find no such dictum laid down in the aforesaid judgment. What is stated in that judgment is only that, since the importers had obtained EPR subsequent to the orders passed by the Commissioner but before clearance of the goods, they had satisfied the requirement under the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. This observation was made by this Court in that judgment after referring to Rule 13(4) of the abovementioned Rules which provides that before clearing of consignment of wastes, the customs authorities shall verify the required documents. 17. The company had requested the Commissioner to grant permission for re-export of the goods. The Commissioner allowed the company to redeem the goods for re-export on payment of redemption fine of ₹ 4,00,000/-, which was reduced by the Tribunal to ₹ 2,00,000/-. 18. Section 125(1) of the Act provides that whenever confisc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21. The Commissioner imposed a penalty of ₹ 50,000/- on the company. Learned counsel for the appellant has contended that the company was not aware of the requirement of obtaining EPR-Authorisation for import of the printers and since the omission to obtain the authorisation was not wilful or deliberate, imposition of penalty was not justified. 22. Section 112(a) of the Act provides that any person, who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, shall be liable to pay penalty not exceeding the value of the goods or ₹ 5,000/-, which is greater. Mens rea is not an essential element/ingredient to impose penalty, unless the language of the statute indicates the need to establish the same. When it is provided in the statute that the act which attracts levy of penalty shall be committed 'knowingly', 'falsely', 'intentionally', 'fraudulently', 'wilfully' etc., then it can be found that it requires mens rea for imposing penalty. The use of such expressions indicates the intention of the legislature in clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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