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TMI Blog2019 (8) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... s rea - argument advanced by the learned Counsel is that they were not personally involved in the forgery of the ETAs and it was the third party who had given them fake ETAs and thus no mens-rea was involved on their part - HELD THAT:- In view of the fact that the Hon ble Apex Court has held in a number of cases that mens-rea is not necessary for contravention of a civil act - The Hon ble High Court of Madras in the case of Commissioner of Customs (Export), Chennai-I versus Bansal Industries [ 2006 (9) TMI 58 - HIGH COURT, MADRAS ] has upheld an imposition of penalty under Section 112 of the Customs Act without involving any mens-rea. Rectification of mistake or not - corrigendum issued for imposition of penalty - HELD THAT:- The corrigendum issued for imposing of penalty under Section 114AA of the Customs Act, 1962 which had no reference in the original order is not sustainable as it amounts to review of the original order. There is no reference that the original order had considered imposition of any penalty u/s 114AA of the Customs Act - once the order is passed by the Adjudicating Authority, he becomes a functus officio and he cannot reopen the case. Only clerical mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods was seized all of which were manufactured in China whereas the ETAs were for the USA manufacture. In a clarification issued to the importer, by the Department of Telecommunications New Delhi. It was made clear that if the manufacturer and the supplier were different, fresh ETA was required to be issued. Further, in an enquiry made from the Department of Telecommunication, Regional Licensing Office(East) New Delhi for verification of the ETA produced by the importer for bill of entry number 4780276 dated 04/04/2016, they vide their letter dated 18/05/2016 informed that the said ETA was not issued from their office. Accordingly, 2250 pieces of the goods covered in the bill of entry number 4780276 dated 04/04/2016 were seized vide pachnama dated 04/08/2016 under Section 110 of the Customs Act. Thus in total 5544 pieces of Fitbit wireless devices having a cumulative assessable value of ₹ 3,15,45,401/- were seized. On the request of the appellant, the seized goods were permitted to be shifted to bonded warehouse under Section 49 of the Customs Act, 1962. The importer vide their letter dated 28/09/2017, requested for permission to re-export the seized goods and prayed for wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is in no way responsible or involved with the procurement of fake ETAs and as soon as the appellant came to know that the ETAs procured by the consultant of Fitbit Inc. USA were not genuine, they immediately requested Fitbit USA to obtain fresh ETAs which were duly obtained and submitted by the appellant before the Department and the learned Commissioner after considering fresh ETAs has held that the goods were not liable to confiscation under Section 111(d) of the Customs Act as those were not imported contrary to any prohibition imposed under the Customs Act or any other law for the time being in force in as much as it is procured by the appellant from WPC authorities are valid since there exists no requirement to obtain different ETAs for identical goods manufactured in different countries under the same brand name. It has further been argued that there was no mens-rea as it was a third party fault and they were under the bonafide belief that the ETAs given to them on behalf of supplier were genuine. He further argued that corrigendum has attempted to review its own impugned order and thus additional penalty imposed on the appellant under Section 114 AA of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument advanced by the learned Counsel is that they were not personally involved in the forgery of the ETAs and it was the third party who had given them fake ETAs and thus no mens-rea was involved on their part and hence they had not violated the provisions of Section 111(d) Customs Act with respect to imports. In his regard we find that in view of the fact that the Hon ble Apex Court has held in a number of cases that mens-rea is not necessary for contravention of a civil act. The Hon ble High Court of Madras in the case of Commissioner of Customs (Export), Chennai-I versus Bansal Industries reported in 2007(207) E.L.T. 346 (Mad.) has upheld an imposition of penalty under Section 112 of the Customs Act without involving any mens-rea in the case by placing reliance upon the Hon ble Apex Court decision in Chairman, SEBI versus Shriram Mutual Fund [(2006) 5 SCC 361] where it has been held as under :- In our opinion, mens-rea is not an essential ingredient for contravention of the provisions of a civil act. In our view, the penalty is attracted as soon as contravention of the statutory obligations as contemplated by the Act is established and, therefore, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 114AA. Even on merits we find that penalty under Section 114AA involves mens-rea on the part of the person who is held liable to penalty under section ibid as the section is applicable to persons who knowingly or intentionally makes use of the false document. The appellants have always taken this stand that the procurement of valid ETA was the responsibility of Fitbit Inc. USA and they had only produced ETAs procured by Fitbit Inc. USA through a third person. There is nothing on record that the appellant had knowingly or intentionally produced the false ETAs. Hence penalty under Section 114AA is not sustainable. We also hold that the accessories valued ₹ 7,11,137/- are also not liable to confiscation as those did not attract the requirement notified under Ministry of Telecommunication letter dated 28/01/2005 mentioned above. 9. In view of the above discussions penalty of ₹ 9,00,000/- imposed under Section 114AA of the Customs Act, 1962 is set aside. 10. In view of above discussions, we feel that the appellant are liable to penalty under Section 112 (a) (ii) of the Customs Act, 1962 and thus we find no infirmity in the order-in-orig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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