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TMI Blog2024 (6) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... all assorted dimensions and granite slabs from the unit at 145, Injambakkam, Chennai. Admittedly, during the period 2011-16, the petitioner had made export from the quarry site to the tune of Rs. 961.79 lakhs. The petitioner was not able to bring the blocks from the quarry to the factory due to logistics constraints. As per the Letter of Permission issued to the petitioner, the unit had to export the entire production or service, excluding rejects and sales in the domestic tariff area as per the provisions of export oriented unit scheme for a period of five years from the date of commencement of production. As per notification No.52/2003 Cus. Dated 31.03.2003, the quarried goods shall be removed from the quarry site only to supply to unit&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 12.01.2021, thereby dismissed the appeal filed by the petitioner as against the order-in-original dated 16.05.2018 passed by the second respondent, thereby imposing penalty of Rs. 9.62 lakhs. 2. The petitioner company is engaged in the manufacture and export of commodities such as dimensional granite blocks, processed, dressed, cut and granite slabs. It's export oriented unit holding Letter of Permission dated 21.12.2004 issued by the second respondent. It was subsequently extended from time to time. It was issued to the petitioner for its factory located at No.145, Injambakkam, Chennai 41, for export. 3. The process of manufacturing is that the mother rock, which is approximately about 700 to 800 cubic meters in size is cut. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the details of their exports. 6. However, the petitioner was issued with show cause dated 24.03.2017, stating that by exporting Rs. 961.79 lakhs worth of dimensional blocks during the year 2011-16, directly from the quarries, which were not licensed premises under the Letter of Permission, thereby the petitioner contravened the provisions of Section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992, (hereinafter referred to as the Act ) as such, the petitioner was caused show cause notice as to why adjudication proceedings as contemplated under Section 13 of the Act, should not be initiated against the petitioner for imposition of penalty under Section 11(2) of the Act. 7. Though the petitioner submitted explanation the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion, he relied upon the judgment of this Court reported in 2017 (349) E.L.T.214 (Mad.) in the case of the Jewels Magnum Vs. Development Commer., MEPZ-SEZ, Chennai, which held as follows :- 28. The learned counsel for the petitioner relied on the Full Bench decision of this Court in the case of (State of Tamil Nadu v. Nu-tread Tyres) (2002) 142 STC 256 (Madras) wherein the Full Bench of this Court has held that the person who makes a declaration must do so with full knowledge that the declaration so made by him is not correct or he made such declaration knowing it to be false. It was held by the Full Bench of this Court that in such case, the authorities must satisfy themselves that there appears an element of mens rea on the part of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate will also throw much light on the fact that the petitioner has not made any misrepresentation or misdeclaration to cheat the exchequer or there is any mens rea on the part of the petitioner to do so. In such view of the matter, in the absence of any ill-intention or mens rea on the part of the petitioner to gain unlawfully by exporting goods which are not permitted to be exported by them as per the LoA, as has been held by the Full Bench of this Court, the respondent is not justified in imposing penalty. 9. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 10. On perusal of counter filed by the respondents and on the submission made by the learned Special Panel Counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took shelter under notification No.52/2003 Cus., dated 31.03.2003, in para (iv)7(iv)(g) of the notification, which states that the petitioner may, subject to such conditions and limitations as they may specify and subject to the provisions of the export and import policy, allow. The petitioner stressed the word in the above notification with the explanation that they have not exported as such, but only after carrying out operations like, trimming, sawing, dressing etc, on the granite block mined. 13. A breach of civil obligations which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must be made by the defa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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