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TMI Blog2020 (12) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The appellant had not asked for any re-test or alike at the relevant point of time. On the contrary under letter dated 24.01.2013 (page no. 23 of the appeal memorandum) the appellant/ importer had waived his right of show cause notice and/or hearing at the stage of adjudication and hence, the contention on behalf of the appellant before me that the certificate was issued by the Chartered Engineer on visual examination, cannot come to rescue of the appellant with regard to the proper description of the goods. It is also not in dispute that for importation of steel scrap, Pre Shipment Inspection Certificate was mandatory in terms of the Foreign Trade Policy, 2009-14. The subsequent communication from the Overseas Supplier together with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, neither there is any existence of ingredient of section 112 of the Customs Act, 1962 nor any mens rea and hence, the imposition of penalty upon the appellant is bad in law and liable to be quashed. The order of confiscation of the imported goods under section 111(d) of the Customs Act, 1962 upheld - penalty imposed upon the appellant under Section 112 of the Customs Act, 1962 - appeal allowed in part. - Customs Appeal Nos.77079 & 77080 of 2018 - FINAL ORDER NO. 75666-75667/2020 - Dated:- 23-12-2020 - SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) Shri Arijit Chakraborty, Advocate Shri Prabir Bera, Advocate for the Appellant (s) Shri S.S.Chattopadhyay, Superintendent (Authorized Representative) for the Respondent (s) ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Supplier provided seven Pre Shipment Inspection Certificates along with such letter which is annexed to the Appeal Petition. 3. The learned Advocate for the appellant further submits that there was neither any knowledge nor reason to believe on the part of the appellant herein w.r.t. the alleged mis-declaration of the goods so imported. In reply to a specific query from this Bench, the learned Advocate submitted that the goods imported during January, 2013 are of no material value as on date and as such, the appellant is no more interested in getting release of the goods against the redemption fine as imposed by the learned Adjudicating Authority. 4. Per contra, the learned Authorized Representative for the department reiterated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.r.t. the confiscation of the goods under Section 111(d) of the Customs Act, 1962 since there was restriction under Foreign Trade Policy, 2009-14 in importation of steel scrap. The importation was permitted only against Pre Shipment Inspection Certificates and it is settled position of law that conditions for import, if not fulfilled, the importation is not permitted. Section 2(33) of the Customs Act, 1962 defines Prohibited Goods which includes the goods the import or export of which is subject to any prohibition under the Customs Act, 1962 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 goods are permitted to be imported or exported have been complied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas, Clause (b) of Section 112 ibid provides that a person who knowingly or having reason to believe about confiscable nature of goods under Section 111ibid has dealt with the same in any manner whatsoever, shall be liable for penalty. In the present case, the Adjudicating Authority has not referred to any of the ingredient of any such clause of Section 112 of the Customs Act, 1962 and had mechanically imposed the penalty upon the present appellant. The Appellate Commissioner below has also upheld such imposition of penalty without considering such position of law. It is also settled position of law that without specific finding, no penal action can be invoked. It is evident on record that the appellant had declared the goods in the Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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