9911796707
TMI Blog2006 (6) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... sed under section 112(b) of the Customs Act (hereinafter referred to as the "Act") is concerned. 2.1 The brief facts of the case are stated as under. The appellant is an indenting agent of importer with respect to various textile materials from abroad. As per the Customs Notification No. 21/2002 dated 1-3-2002, vide 31.168, exporting firm which are registered with Apparel Export Promotion Council (in short "AEPC") can import the lining materials free of duty upto 2% of the Freight On Board (for brevity "FOB") value of the export of textile garments made in the previous year. The AEPC will issue certificate to the exporting firm certifying the value of the exports made during the previous financial year. The duty free imported goods sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the necessary documents from the importers for the import of polyester lining fabrics, cleared the imported goods by availing exemption under notification No. 21/2002 dated 2-3-2002 and after taking delivery of the imported goods, diverted the same to the local market. 2.5 As the goods imported availing concession under notification No. 21/2002 dated 1-3-2002 were not used in the manufacture of textile garments and diverted to domestic market in contravention of the notification, the same are liable to be confiscated under Section 111(o) of the Act and the importer as well as the agent and indenting agent are liable to a penalty equal to the duty amount. Hence, a show cause notice was served on the appellant as to why a penalty shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, the appellant/indenting agent has preferred these appeals raising the following substantial questions of law. (i) Whether before penalty can be imposed the entirety of the circumstances must reasonable point to the conclusion that the appellant involved in dealing with the goods consciously or knowingly? (ii) Whether penalty can be imposed under Section 112(b) of Customs Act in the absence of mensrea? and (iii) Whether penalty can be imposed on the person other than the importer without requisite knowledge of confiscability of the goods? 3. In this regard, it is apt to refer Section 112 of the Act, which reads as follows : "112. Penalty for improper importation of goods, etc. - Any person, (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest; (v) in the case of goods falling both under clauses (ii) and (iii), to a penalty not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees, whichever is the highest." 4.1 From the facts and circumstances of the case, it is not in dispute that the appellant availed concession under notification No. 21/2002 dated 1-3-2002, which is subject to the conditions stipulated therein, as referred to above, and that the importer as well as the indenting agent had stated before the original authority, viz. commissioner of customs th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad fairly conceded the above violation before the authorities concerned. 4.3 The appellant, thus, having contravened the conditions stipulated in the notification No. 21/2002 dated 1-3-2002, presumed to have requisite knowledge that the said goods could be confiscated under Section 111(o) of the Act. Consequently, his involvement in diverting the imported goods from Tirupur to New Delhi is considered to be consciously and knowingly done, attracting Section 112(b) of the Act. Therefore, we do not have any hesitation to hold that the role of the appellant/indenting agent is one wholly organised and therefore, he is liable for penalty imposable under Section 112(b) of the Act. 4.4 Finding no substantial question of law arises for our con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
