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TMI Blog2020 (1) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER P.K.CHOUDHARY : These appeals have been filed against Order in Original No.KOL/CUS/PORT/84/2017 dated 29.12.2017, passed by The Commissioner of Customs (Port) , Kolkata. 2. On the basis of specific intelligence, DRI officers intercepted two containers lying at CWC, Container Freight Station Kolkata. The said containers were imported by M/s. Karan Overseas, Delhi and M/s. Geet Enterprises, Delhi. The goods declared in both the containers were 'Rice Cooker'. On examination, it was found that in front row 'Rice Cookers' were stacked. Behind the 'Rice Cookers', 'Cigarettes' of foreign origin were found. The goods found in the container were placed under seizure. The officers of DRI conducted detailed investigations, including record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any prior knowledge regarding misdeclaration of the imported goods, which is a necessary ingredient for imposition of penalty under Section 112. Shri Bharat Bhushan arguing for Shri Pawan Kumar Ralli, submitted that even if it is assumed that all the charges levelled in the Show Cause Notice are correct, then also the penalty of Rupees One Crore imposed is much beyond the maximum penalty impossible under Section 112. He elaborated that in case of prohibited goods maximum penalty impossible is equal to the value of goods and in case of dutiable goods, other than prohibited goods, maximum penalty impossible is Ten percent of the duty sought to be evaded. He submitted that goods in question cannot be termed as 'prohibited' merely for misdecla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 112 of the Customs Act, 1962 cannot be imposed unless the evidences are adduced to show prior knowledge of fraud and wrongful intent as held by this Tribunal in Lohia Travels & Cargo vs. Commissioner of Customs (Prev.) New Delhi, 2015 (330) E.L.T. 689 (Tri. - Del.). Therefore, we find that the imposition of penalty upon CHA firm M/s. Mukharjee & Alliance and its employees Shri Malay Sarkar and Shri Tanmay Bose is not justified and accordingly set-aside the same. 9. After perusing the case records, we have no hesitation to hold that Shri Pawan Kumar Ralli, Shri Naresh Dutta and Shri Sreepraksh Tiwary were complicit in this smuggling racket and hence liable for penalty under Section 112. But, the moot question is quantificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined;] (iii) in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty [not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater; (iv) in the case of goods falling both under clauses (i) and (iii), to a penalty [not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty for improper importation of goods. The judgments relied upon by the Union reveal a liberal construction of a provision in favour of the State to deal with the mischief for which the statute and the provision have been enacted. However, such construction may not apply to a penalty as the cardinal rule for construing a penal provision is otherwise. It is possible for a provision providing for confiscation of goods to be liberally interpreted, but when a provision provides for punishment it has to be strictly construed. 15. The expression "goods in respect of which any prohibition is in force" in the context of Section 112 of the Act would imply goods which are prohibited from being imported and not goods which have been smuggled into th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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