TMI Blog1988 (12) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 1985. He would like to clarify in this connection, that the appeal having itself been filed on 9th July, 1985, the Order-in-Original could have only been received earlier than this date and not subsequently. Therefore, the noting seen on the photocopy obviously does not relate or refer to the date of receipt. 3. As a matter of fact, the Order-in-Original having been received on 11-4-1985 and the appeal having been filed on 9th July, 1985 was well within time. 4. The learned JDR agreed and accepted the position. 5. It was observed in the Bench that the appeal was in time. 6. The learned Counsel further stated that he has also filed an application under Rule 23 seeking the Tribunal s permission for taking on records two document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept that the Collector was justified in ordering confiscation of the machine. In other words, they are not disputing the facts of the case on the legal position in relation to the goods. 15. Their main contention is that they had placed order for a machine with 210 mm dia and the suppliers had agreed to provide the same and the invoice also showed 210 mm dia and they had also been billed at the price what had been agreed to for 210 mm dia machine. In the Engineers Certificate as well as in the Letter of Credit, the dia was shown as 210 mm. It was in view of these facts and these documents that they had declared the dia as 210 mm in the bill of entry. 16. However, when on examination the dia was found to be less than 210 mm they had ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 40,000/- approximately. 19. It was also his contention that although the appellants are not disputing the facts and the legal position regarding the confiscation of the goods and only questioning the penalty, it was this contention that looking to the facts and circumstances of the case as a whole, the Collector was justified in imposing a penalty in addition to fine. 20. It was also their submission that the documents which have been produced now were not before the learned Collector and therefore, he could not have taken them into account. However, the goods being admittedly liable to confiscation and the case being that of a misdeclaration Section 112 also came into picture and penalty became imposable in terms of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a penalty can be imposed under Section 112 only if it could be shown that a person acted or abetted violation of the Customs Act and allied laws. 26. In the instant case, they had not violated the Customs Act or allied laws knowingly or intentionally and have already suffered fine because of a mistake on the part of the supplier. Therefore, he would urge that in any case the personal penalty may be waived. 27. I find that the learned Counsel s arguments have a lot of force. The appellant has succeeded in showing that the declaration in the Bills of Entry was made in view of the order placed by them and the relevant documents forwarded by the supplier showing the same specifications for which the order was placed. 28. They have als ..... X X X X Extracts X X X X X X X X Extracts X X X X
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