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2013 (8) TMI 652 - CESTAT AHMEDABADNon-declaration of Goods – Penalty on the master of the vessel on account of non-declaration of 700 MT of cement, two Dozer Caterpillar and one motor bike in the IGM - Difference of opinion - majority order - Held that:- Non-declaration was not on account of any mala fide on the part of the captain - To err is human and as such mistake on the part of the captain can be on account mis-understanding of law and be of procedural nature without any intention to evade duty – bona fide and inadvertent mistake should not be met with imposition of penalty which had inherent built of mala fide – relying upon ESSAR OIL LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI [2002 (2) TMI 542 - CEGAT, MUMBAI]. In the absence of any mala fide imposition of penalty on steamer agent u/s 112 was not called for - It was trite law that for attracting penalty knowledge of the offended had to be brought out - the captain could be under a bona fide belief that the above items being part and parcel of the vessel on account of the Board’s Circular were not required to be declared separately - such items were already a part of MOA and could not had escaped the attention of the AO – Penalty set aside – Decided in favor of assesse. Dissenting Judgement - Member (Technical) was not in consonance with the opinion of the Member (Judicial) – He delivered separate Judgement as to against the assesse – the Third Member was into the favor of assesse.
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