TMI Blog1990 (9) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 62067 and also the origin of all the bearings. During examination it was found that some of the ball bearings had not been correctly declared and hence they were not entitled to the benefit of concessional rate of duty in terms of Notification No. 146/86-Cus. resulting into the dis.c.losure of an attempt to evade duty to the extent of Rs. 1,28,606.49 and observed that the goods were of different origin. Further on enquiries it was noticed that licence stand in the name of M/s. Rashtriya Casting Works had been suspended by the Licensing Authority on 21-10-1988. Accordingly, D.R.I, held that importation as unauthorised being not covered by import licence and thereby rendering the goods liable for confis.c.ation u/s. 111 (d) of the Customs Act, 1962. Apart from rendering the goods liable for confis.c.ation u/s. 111 (m) and 111 (d) of the Customs Act, 1962, penalty was initiated under Section 112 of the Customs Act, 1962. 3. The Additional Collector who adjudicated the proceedings after considering reply to the Show Cause Notice and submissions made during the course of adjudica-tion proceedings accepted the declared value and dropped the charge against the appellants in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on proceedings were not sustainable in the eye of law and in support of his contention he cited the following decisions :- 1. Akbar Badruddin Giwani v. C. C. Bombay - 1919-2-S.C.C-203 = 1990 (47) E.L.T. 161. 2. Ravula Hariprasad Rao v. The State - AIR (38) 1951 S.C.R - 322 3. Merck Spares v. Collector of Central Excise Customs, New Delhi -1983 (13) E.L.T. 1261 (Tribunal). 4. Vishnu B. Seemani v. K. Narsimhan - 1987 (27) E.L.T. 266 (Guj.) = 1987 (11) ECR 121 (Guj.). 5. Jain Exports Pvt. Ltd. v. Union of India - 1990 (47) E.L.T. - 213 (S.C.). 6. Shanti Parshad Jain v. Director of Enforcement - AIR 1962 - S.C. -1764. 7. Indian Handicrafts v. Collector of Customs - 1990 (45) E.L.T. 503. 8. Uma Textiles v. Collector of Customs - 1990 (15) ETR - 369. (ii) His next proposition is that a licence obtained by fraud is only voidable and is good till it is avoided. He said assuming that it was obtained by fraud at the original instance, it remained valid in the hands of the transferee till it is suspended. In this case the licence dated 13-1-1988 was suspended only on 21-10-1988 but ship was landed on 25-8-1988 and importation took place on 4-10-1988. In view of this fact a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut straightaway finds place in the impugned order. Goods cannot be confis.c.ated either under Section 111 (o) or under Section 111 (d) 111 (m) of the Act as there was no prohibition when the goods imported under a valid licence. (vi) As regards quantum of redemption fine, he urged that Additional Collector grossly erred in taking market price on the date of passing orders as basis while determining the redemption fine, forgetting that there was a gap of more than one year and for working out fine, market price as prevailing on the date of import alone is to be taken into account. In support of this proposition, he cited the decision in the case of Ashwin Vanaspati Indus. Pvt. Ltd. v. Collector of Customs, reported in 1987 (29) E.L.T. 991. Further he said that details of market enquiries shown in the impugned order were not dis.c.losed to the appellants for their rebuttal which amounted to denial of principles of natural justice. 6. On the other hand Shri G. Bhushan, learned S.D.R. for the Revenue while countering the arguments justified the action of the Department in imposing the redemption fine as well as penalty. While reiterating the grounds adopted in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. 8. We have carefully considered the arguments advanced on both sides, perused the records and citations cited by respective sides. The main issue to be decided in this case is whether the importation is illegal and if so, whether knowledge is essential ingredient for imposition of fine and penalty. The propositions on point of law placed before us by the learned counsel for the appellants are sound principles of law laid down by the Courts. But how far those decisions are relevant and applicable to the facts of the present case is our concern. The contention of the appellants is that they have imported the goods under valid licence as the licence was suspended subsequent to the date of importation and licence was valid on the date of importation. Further this suspension was not known either to the Department or to the appellants on the date of importation. On the other hand the finding given by the Adjudicating Authority is that the licensee is nonexistent and therefore, the licence is ab-initio void. The Department has come to this conclusion after making detailed enquiry about the non-existence of the licensee. The appellants have not come out with any evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in personam which is essential against the person concerned either in smuggling the goods or in illegal importation. Section 125 of the Customs Act deals with fine in rem concerned to such illegal importation irrespective of the knowledge of the person who imports and Section 112 of the Act deals with penally in personam applicable to persons involved in such illegal importation. While considering the imposition of fine under Section 125 of the Act it is not necessary for the Customs authorities to prove that any particular person is concerned with illicit importation or exportation. But in the case of penalty under Section 112 of the Customs Act the Department has to prove further that the person proceeded against was concerned in such illegal importation. With these observations and in the view we have taken that importation was illegal in the present case we hold that redemption fine in lieu of confis.c.ation under Section 125 was justified. We are unable to convince with the arguments advanced by the appellants counsel that one Shri Ruparell was the main accused who has been exonerated and on the same evidence appellants have been penalised. After going through the Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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