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TMI Blog2024 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... upto the value of the goods i.e. Rs. 3.13 crores, whereas in the instant case, the redemption fine imposed is about 19% and the penalty on both the appellants cumulatively amounts to about 9.5% of the value of the goods. In Akbar Badrudin Giwani [ 1990 (2) TMI 50 - SUPREME COURT] , the Supreme Court also considered the proportionality of conduct vis-a-vis the quantum of penalty. In the present case the Commissioner of Customs could have imposed redemption fine and penalty each of 100% of the value of the goods but has restricted the redemption fine to 19% and penalty to 9.5%. It is found that discretion has been judicially exercised and in fact has been exercised in favour of the appellants by not imposing a harsh or excessive penalty. The question of law is answered in favour of the authority/respondent and against the Appellants/Assessee - there being no infirmity in the impugned order warranting any interference - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were not aware that the WPC licenses were forged. It was contended that the WPC licenses had been used by the appellants bonafidely believing them to be genuine. 10. By order dated 16.05.2014, the Commissioner of Customs adjudicated the Show Cause Notice and held that the goods that had been imported under the forged WPC licenses were liable for confiscation under Section 111(d) of the Customs Act, 1962 (hereinafter referred to as the Customs Act). 11. The Commissioner of Customs gave an option to the Appellants to redeem the goods under Section 125 (1) of the Customs Act on payment of redemption fine totalling to Rs 60 Lakhs. Further a penalty of Rs 15 Lakhs each was imposed on each of the appellants under Section 112 (a) of the Customs Act. In so far as ASL was concerned a penalty of Rs 1.25 crores was imposed on it and individual Directors/Managers/employees of ASL were imposed penalty ranging from Rs 6 lakhs to 20 Lakhs. 12. We may note at this juncture that the value of the goods that were imported using the forged WPC licenses was Rs 3.13 crores. 13. Pursuant to the said order appellants deposited/paid the redemption fine and subject consignment was released without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia stipulates that any goods which are imported or attempted to be imported or are brought within the Indian customs waters contrary to any prohibition imposed by or under the Act shall be liable to confiscation. 21. In the instant case, it is not in dispute that WPC license had to be obtained from the wireless planning and coordination wing of the Ministry of Communication. It is also not in dispute that WPC licenses that were used for the purposes of import were forged and fabricated. 22. Consequently, provisions of Section 111 (d) of the Customs Act are clearly satisfied. Subject goods have been brought within the Indian custom water contrary to the prohibition imposed i.e. of having an import license. Resultantly, the goods were liable for confiscation. 23. There is no requirement in Section 111 of any mens rea for the contravention. The provisions become applicable on a strict liability principle. Once the goods are imported contrary to any prohibition imposed, the goods are liable for confiscation. 24. For the purpose of completeness, we may note that by the impugned order passed by the Tribunal, appeal filed by ASL was also dismissed. 25. We are informed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of absolute liability. Section 112 (a) of the Customs Act read with Section 111 clearly shows that the goods were liable to confiscation and for redemption thereof fine was to be imposed and further penalty liable to be imposed on the appellants. 30. Reference may also be held to provisions of Section 114 (AA) of the Customs Act which reads as under: "114AA. Penalty for use of false and incorrect material. 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 for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods." 31. Section 114AA provides for penalty for use of false and incorrect material. Knowing and intentional use of false or incorrect material makes a person liable to penalty not exceeding five times the value of goods. 32. When section 112 (a) (i) of the Customs Act is contrasted with Section 114 AA it further establishes that where mens rea is established for use of false and incorrect material, the penalty could be five times the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by learned counsel for the appellants on the judgment in the case of Akbar Badrudin Giwani (supra) is misplaced, for the reason that we have found that the discretion in the instant case has been exercised judicially by the Commissioner of Customs. 41. In Akbar Badrudin Giwani (supra), the Supreme Court also considered the proportionality of conduct vis-a-vis the quantum of penalty. In the present case the Commissioner of Customs could have imposed redemption fine and penalty each of 100% of the value of the goods but has restricted the redemption fine to 19% and penalty to 9.5%. We find that discretion has been judicially exercised and in fact has been exercised in favour of the appellants by not imposing a harsh or excessive penalty. 42. Similarly, the decision in the case of Jain Exports Pvt Ltd (supra) also does not further the case of the appellants. In Jain Exports Pvt Ltd (supra), this Court has referred to the judgement of the Supreme Court in Chairman Sebi vs Shriram Mutual Fund 2006 (5) SCC 361 wherein the Supreme Court has held that once contravention is established then the penalty has to follow and only quantum of penalty is discretionary. As noticed in Chairman ..... X X X X Extracts X X X X X X X X Extracts X X X X
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