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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 ..... pulates that on importation of goods, the owner shall state the true description in the Bill of Entry and the goods in question falls in the category of prohibited goods, by virtue of Section 111(d) of the Customs Act, 1962, renders the goods in question as prohibited. As per the judgment of Hon ble High Court in Gopal Saha vs. Commissioner of Customs [2016 (5) TMI 83 - CALCUTTA HIGH COURT] , the goods in question cannot be termed as prohibited goods merely for misdeclaration in the Bills of Entry, for the purpose of imposing penalty under Section 112. Now, the only category left is of dutiable goods other than prohibited goods. In this category, maximum penalty impossible in 10% of duty sought to be evaded or five thousand rupees, whichever is higher, In the present case, the Customs Duty sought to be evaded is nowhere quantified. Learned Authorized Representative for the Revenue also failed to help in this regard. Now, therefore, maximum penalty impossible in the instant case is Rupees Five Thousand only. Accordingly, the penalty imposed upon Shri Pawan Kumar Ralli, Shri Naresh Dutta and Shri Sreepraksh Tiwary is reduced to ₹ 5,000/- each. Appeal allowed in part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 112 of the Customs Act, 1962. 4. We have heard S/Shri Arijit Chakraborty, Debaditya Banerjee, Bharat Bhushan, Prabir Bera, Advocates for the appellants and Sh. S.Guha, Authorized Representative for the Revenue. 5. Shri Arijit Chakraborty, arguing for the CHA firm and its employees submitted that the department have failed to adduce any evidence in support of the allegation that they had 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 misdeclaration in the Bill of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per importation of goods, etc. - Any person, - (a) 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, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding the value of the goods or five thousand rupees], whichever is greater; [(ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher : Provided that where such duty as determined under subsection (8) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court had held as under. 14. There is a distinction between Section 111 and Section 112 of the Act. The former provides for confiscation of improperly imported goods and the latter prescribes the penalty 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 the country in contravention of the procedure established by law for the import thereof. Thus, while the corresponding provision in Section 111 of the Act permits the confiscation of the goods on a broader constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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