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2014 (12) TMI 610 - HC - CustomsQuantum of penalty & redemption fine - Tribunal reduced both penalty & fine - whether there is discretion vested with the Tribunal to reduce the penalty imposed by the Original Authority under Section 114A of the Customs Act - Import licence issued by the Directorate General of Foreign Trade dated 20-6-1994 was re-validated up to 31-5-1998. During the course of investigation by the Department, clarification was sought for from the Additional Inspector General (Wild Life) in the Ministry of Environment and Forest. In pursuance to such request, the said Authority, by communication dated 21-7-1998, clarified that the respondent/importer was a “Zoo” and the certificate issued by the Deputy Director Wild Life (Protection) was valid. Once again the Department addressed the Member Secretary, Central Zoo Authority on 24-8-1998 to re-examine and clarify whether the importers have been accorded recognition as “zoo” in terms of provisions of Wild Life (Protection) Act, 1972 and the Recognition of Zoo Rules, 1992. It is only thereafter, the Ministry of Environment and Forest, during October, 1998, informed the appellant - Department that after examining the matter in detail, it was decided that the importer was not officially accorded “Zoo Operation Status” and directed that the .import may be treated as “Other Live Animals”. In order to attract penalty equal to the duty determined, there should be a clear finding that the importer had colluded or made a wilful mis-statement or suppressed the facts. Thus, in the absence of any such specific finding rendered by the Original Authority nor any such proposal in the show cause notice, we are inclined to confirm the order passed by the Tribunal reducing the penalty of ₹ 10.00 lakhs - Decided against Revenue. Entire importation has been handled by the Managing Director of the company and all the correspondences between various Authorities were personally handled by the Managing Director and therefore, he was fully aware that the firm had imported the subject goods. Therefore, he cannot plead ignorance of the facts. Further more, the respondent had not questioned the order of confiscation or the imposition of duty. Thus, the order of confiscation has attained finality and there is no discretion vested under Section 112(a) of the Customs Act and there is no requirement to record a finding that there has been any wilful mis-statement or concealment or suppression of facts, as is found under Section 114A of the Customs Act. Tribunal was not right in setting aside the penalty imposed on the Managing Director under Section 112(a) of the Customs Act. Further, it has to be pointed out that under Section 112(a), any person, who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, shall be liable to pay penalty not exceeding the duty sought, to be evaded on such goods or five thousand rupees, whichever is greater. Thus, considering the facts, the Managing Director is liable to pay penalty, which is fixed at ₹ 5,000 - Decded in favour of Revenue.
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