Commissioner of Cus. Vs. Timetech Enterprises Pvt. Ltd. - Court Judgment

Excerpt:

.....where the appellant has not acted dishonestly, or with deliberate or distinct object of breaching the law, penalty should not be imposed. the penalty is imposable under section 112 of the customs act on appreciating the facts and circumstance in each case. in present matter, it is observed that the appellant had imported the oakwood laminator and they had classified it under heading 8465. the department had classified the item under sub-heading 8477.89 observing that resort to heading 8479 is to be taken only when the items cannot be classified in any of the preceding headings of chapter 84. the additional commissioner, after considering the various heading, came to the conclusion that the machine is classifiable under heading 8479.89. the commissioner (appeals) after appreciating the facts of the matter came to the conclusion that the goods have become liable to confiscation as a result of difference of opinion about the classification between the importer and the department and no penalty is imposable. the department has not made out any case for imposition of penalty and as such the appeal is not admitted.

Judgment:

1. The matter is listed for admission of appeal filed by revenue. The issue involved is whether penalty is imposable on respondents M/s.

Timetech Enterprises Pvt. Ltd. as they had imported goods without specific import licence.

2. Shri T.A. Arunachalam, learned JDR, submitted that the respondents had imported one Oakwood Laminator which was classified by them under Heading 84.65 of the Customs Tariff Act. On examination of the goods, it was found to be classifiable under sub-heading 8479.89 of the Customs Tariff Act. The Additional Collector, Customs confiscated the impugned goods with an option to redeem the same on payment of fine of Rs. 80,000/- and imposed a penalty of Rs. 20,000/- under Section 112(a) of the Customs Act holding that the impugned goods being a consumer item required specific import licence in accordance with the provisions of the H.S. Aligned Import & Export Policy and since no import licence had been produced, the goods were liable to confiscation. Learned DR emphasized that the question of mens rea is not necessary for imposition of penalty and Commissioner (Appeals) erred in setting aside the penalty. He relied upon the decision in the case of Pine Chemical Suppliers v. Collector of Customs reported in 1993 (67) E.L.T. 25 (S.C.) in which it was held that the question of mens rea is not relevant for quantum of liability of penalty under Section 112 of the Act.

3. After considering the submissions of the learned DR, I observed that the Commissioner (Appeals) while setting aside the penalty had relied upon the decision of the Supreme Court in the case of Akbar Badruddin Jiwani v. Collector of Customs reported in 1990 (47) E.L.T. 161 (S.C.) in which it was held that where the appellant has not acted dishonestly, or with deliberate or distinct object of breaching the law, penalty should not be imposed. The penalty is imposable under Section 112 of the Customs Act on appreciating the facts and circumstance in each case. In present matter, it is observed that the appellant had imported the Oakwood Laminator and they had classified it under Heading 8465. The department had classified the item under sub-heading 8477.89 observing that resort to Heading 8479 is to be taken only when the items cannot be classified in any of the preceding headings of Chapter 84. The Additional Commissioner, after considering the various heading, came to the conclusion that the machine is classifiable under Heading 8479.89. The Commissioner (Appeals) after appreciating the facts of the matter came to the conclusion that the goods have become liable to confiscation as a result of difference of opinion about the classification between the importer and the department and no penalty is imposable. The department has not made out any case for imposition of penalty and as such the appeal is not admitted.