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TMI Blog2024 (10) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... .2047404 dated 06.05.2013 for clearance of goods declared as "LC PUFA Mix Oil with Sofinol (edible grade)" having declared value of Rs.10,56,801/-. No examination was prescribed for the said Bill of Entry when it got facilitated by RMS. However, at the time of 'out of charge' of this consignment it was observed from the import documents that the importer had classified the goods under CTH 15079010 which covers the refined soyabean oil of edible grade but the goods in question was LC PUFA Mix Oil. The Mixed Oils are not covered under the CTH 150721515. The appropriate heading for classification of mix oil is CTH 15179090. Since the supplier of goods also mentioned the CTH 1517.90 in their invoice, the Department formed an opinion that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods has to be decided by the importer only. The importer herein i.e. M/s. Nestle India Ltd. is an expert in the field of nutrition. The composition, nature and characteristics of the goods imported by them were known to them only. Appellant has never been privy to those facts. The appellant was purely acting upon the instructions, documents and the clarification given by the importer. The reliance has been placed upon the contract dated 01.05.2007 between the appellant and the importer wherein the scope of contract is that the appellant shall prepare/ file Bills of Entry on receipt of necessary documents from the importer to get the Bills of Entries appraised and finalized and to take clearance from the concerned officers. The moment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 112 (e) is not sustainable as the said provision has 5 sub-clauses but the show cause notice has not specifically invoked any of those clauses. The order imposing penalty is therefore liable to be set aside for want of specific allegations in the Show Cause Notice. With respect to penalty imposed under section 114AA of the Act it is impressed upon that appellant had no role in classification of the goods. Importer only had to decide FSSAI clearance was also to be taken by the importer. The appellant filed the Bill of Entry under the bonafide belief that the goods were correctly classified. Otherwise also penalty under section 114 AA will be applicable only in those cases where export benefits are claimed without exporting the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Mahindra and Mahindra Ltd. vs. Commissioner of Central Excise, Mumbai reported in 2010 (249) ELT 182 (Tri-Bombay). Another decision in the case of Rajesh Maikhuri and Others vs. Commissioner of Customs (Exports) New Delhi reported in 2020 (371) ELT 561 (Tri-Del.) 5. Having heard both the parties at length, perusing entire record of the appeal including the Show Cause Notice and the order under challenge, we observe that the basic allegation in the Show Cause Notice is that the importer had wrongly classified the goods under CTH 5079010 whereas the goods were required to be classified under 15179090. The importer M/s. Nestle India vide their technical writeup dated 10.05.2013 and 15.05.2013 had conveyed to the Department that they have im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstood as same as wrong declaration. The former is out of bonafide mistake and the later one is intentional. It has been held in the case that if there is no intentional or deliberate wrong declaration to attract the mischief of the Customs Act. 5.2 These decisions clearly established that the mens rea is a relevant fact for levy of penalty under section 112 of the Customs Act and penalty cannot be levied based on the bonafide belief. Since the allegations since beginning are against the importer that he had wrongly classified the goods, the appellant from no stretch of imagination can be held liable for the said classification. We do not find a single evidence showing any instance of any benefit availed or even attempted to be availed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic sub clause of section 112B. The Apex Court in the case of Amrit Food vs. Commissioner of Central Excise reported in 2005 (190) ELT 433 (SC) has held that when a particular clause of the provision has not been invoked in the Show Cause Notice nor has been specified in the adjudication order. The order imposing penalty is waived and is liable to be set aside. 7. Coming to the penalty imposed under 114 AA the objective of section 114AA as was subsequently incorporated, is apparent from 27th report of the Standing Committee on Finance (2005) which proposed this new section consequent to the deduction of several cases of fraudulent export where the exports were shown only on paper and no goods crossed the Indian boarder. The Committee opined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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