9911796707
TMI Blog2022 (12) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... Gano Mycelium' imported by it. The appellant filed the Bills of Entry classifying this good under Customs Tariff Heading [CTH] 30039011. The Assistant Commissioner re-assessed it under CTH 21069099 and on an appeal by the importer, Commissioner (Appeals), by order dated 17.2.2014 upheld the classification by the importer and set aside the order of the Assistant Commissioner. Revenue's appeal against the order of the Commissioner (Appeals) was decided by this Tribunal by Final Order dated 10.1.2018 upholding the classification of the goods in favour of the Revenue and set aside the order of the Commissioner (Appeals). Meanwhile, the appellant continued to file Bills of Entry on behalf of the importer for the goods under CTH 30039011 as upheld by the Commissioner (Appeals) and orders for clearance of the goods for home consumption were given by the officers under Section 47 in all the Bills of Entry. 3. The present proceedings were initiated after the Final Order of this Tribunal dated 10.1.2018 was passed. A Show Cause Notice [SCN] dated 2.7.2018 was issued to the importer and to the appellant invoking extended period of limitation. A supplementary SCN dated 21.10.2019 was also iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Tribunal. The last Bill of Entry dated 23.3.2018 was filed shortly after the Final Order when the appellant was not aware of the Final Order, not being a party to the appeal. There is nothing on record to show that a copy of the Final Order was served on the appellant. Therefore, even in this Bill of Entry, the goods were classified as per the order of the Commissioner (Appeals). 7. Learned counsel further submits that the classification of the goods in the Bill of Entry is a part of self-assessment under Section 17(1) which is subject to re-assessment by the officers under section 17(4). Thereafter, the goods are given 'out of charge' (are cleared for home consumption under section 47). The Commissioner has ignored the fact that no re-assessment was done by officers in any of these Bills of Entry and all the goods were cleared for home consumption by the officers correctly following the order for the Commissioner (Appeals). 8. Therefore, the appellant has committed no error, let alone, committed an act which will attract penalties. This appeal may, therefore, be allowed and the impugned order insofar as it pertains to the penalty against the appellant be set aside. 9. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal passed the Final Order. However, until the Final Order of this Tribunal was issued, the order of Commissioner (Appeals) was binding both on the importer and the officers. 13. It would be worthwhile to examine the relevant legal provisions. Section 46 requires the importer (or his agent) to make an entry in respect of the goods imported into the country and further requires the importer to declare that the contents of the Bill of Entry are true. Section 17 requires the importer to self-assess duty and empowers the officer to re-assess the duty so self-assessed by the importer. There is no separate mechanism or procedure or form in which the importer can self-assess duty. It is part of the Bill of Entry itself. Assessment of Customs duty involves classification of the goods under the CTH, their valuation as per Section 14 and Customs Valuation Rules and application of the exemption notifications. These fields, when filled in the Bill of Entry filed under section 46 by the importer (or his agent) complete the self-assessment of duty. Evidently, these are not facts but are views. While the importer is required to subscribe to the truth of the contents of the Bill of Entry, it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on such goods. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re- assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. *******" 14. The importer, or on its behalf, the customs broker, only self-assesses duty just as one self-assesses income tax liability and files an return for tax on Personal income. Self-assessment does not make the appellant a quasi-judicial authority or any authority in any sense of the term. Self-assessment is subject to any reassessment by the proper officer. Self-assessment can also be appealed against to the Commissioner (Appeals). They can assess duty as per their understanding and the officers are free to reassess it as per Section 17(4). Mis-classification or incorrect assessment of duty does not amount to mis-declaration in the Bill of Entry nor does it attract any penalty. 15. We understand that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts for clearance of the goods and were dealing with the goods which they knew were liable to confiscation under section 111(d) and (m) of the Customs Act, 1962. I also find that the intention/ mens rea to evade duty is not a relevant factor for the penalty proposed under section 112 (a) of the Customs Act, 1962. Section 112(a) of the Act consists of two parts viz., (i) liability to confiscation and (ii) abetting the act or omission rendering the goods liable to confiscation. In such cases, it has nothing to do with mens rea. The Apex Court in Chairman SEBI v Shriram Mutual Fund (2006) 5.SCC has held that mens rea is not an essential ingredient for contravention of the provisions of the Civil Act, unless......... Thus, M/s. Challenger Cargo for their aforesaid acts of omission and commission and for submitting wrong declaration in the Bills of Entry, are liabel to penalty under section 112(a)(ii) and 114AA of the Customs Act, 1962. ... 17. Thus, in the impugned order, the Principal Commissioner found that: a) the appellant was aware of the classification issue; b) despite being aware of the classification issue, the appellant continued to file Bills of entry classifying the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -shipment, with the declaration for transshipment referred to in the proviso to sub-section (1) of section 54; ... SECTION 112. Penalty for improper 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, ... 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 the 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 : 20. Section 111(m) does not provide for confiscation of goods if the importer or on his behalf, the Customs Broker claims any wrong classification in the Bill of Entry. It only provides for confiscation if there is mis-declaration of goods. Even if the goods are misclassified or duty is otherwise wrongly se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 111(d) and 111(m) is not correct. The goods were not confiscated even in the impugned order under section 111(d). Section 111(m) applies if goods do not correspond to an entry made under section 46 and there is no allegation, let alone evidence in this case that the goods were not as per declaration. The allegation of mis-classification of goods, even if it is true, will not attract 111(m). Therefore, the penalty under section 112 imposed on the appellant is not sustainable and needs to be set aside. e) Penalty under section 114AA is imposable if a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business under the Act. There is no allegation or evidence that the goods were wrongly declared and the allegation of mis-classification or incorrect assessment of duty, even if it is true, will not attract penalty under section 114AA. Therefore, penalty under section 114AA imposed on the appellant is not sustainable and needs to be set aside. 22. For all the above reasons, the appeal is allowed and the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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