TMI Blog1999 (9) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and released on redemption fine of Rs. 1 lac under Section 111(d) of the Customs Act, 1962. Penalty of Rs. 50,000/- has also been imposed under Section 112(a) of Customs Act, 1962. The goods imported under Bill of Entry No. 1819, dated 28-3-1994 were already cleared and were not available for confiscation, hence penalty of Rs. 1,20,000/- was imposed under Section 112(a) of the Customs Act. 2. The show-cause notice dated 19-9-1994 was issued to the appellants contending that they had filed Bill of Entry No. 5127, dated 8-9-1994 for clearance of 1000 kgs. of shrimp feed imported from USA under the cover of A.W.B. No. 40426960, dated 9-8-1994. They claimed the assessment of the goods imported i.e. shrimp feed falling under Heading 2309.90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temia is classified as live feed to over 85% acqua cultured species around the world, although several artificial feeds have been formulated and compounded, but none have equalled and/or given better performance than artemia. Because of this unique nature and role, it has revolutionised the aquaculture industry especially prawn culture and salt production in many advanced countries. It is further stated that as per the Biological and Ecological classification, the brine shrimp artemia is Crustacean closely related to shrimp belonging to phylum arthropoda. It is also stated that in nature, artemia are normally found in by persaline lakes, brine ponds and lagoons and man made salterns. The show cause notice further stated the details of tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly under Heading 0511.99 of the Act at 10% Basic + Nil CVD duty without the benefit of Notification and duty had been worked out to Rs. 52,028/- on the value of Rs. 4,42,563/- in respect of one Bill of Entry No.1819, dated 28-3-1994 and in respect of another Bill of Entry No. 5127, dated 8-9-1994 the value was worked out to Rs. 5,15,131/- CIF (assessable value Rs. 5,20,282/-) which was awaiting clearance and goods cleared for home consumption under the cover of Bill of Entry No. 1819, dated 28-3-1994 having value of Rs. 4,42,563/- CIF (assessable value Rs. 4,46,989/-). Hence, the appellants were called upon to explain why the goods should not be confiscated under Section 111(m) of the Customs Act. The total duty demanded in the show-cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the appellants had no intention to evade duty or to mis-declare the item, hence, the question of ordering for confiscation and releasing the same on payment of fine did not arise in the matter. He further submits that the appellants were actual users and the imported item was utilised for feeding of prawns and for worth of crores of rupees these prawns were exported and also removed in the domestic market. There was no attempt on their part to sell it in the market and make profits, hence redemption fine and penalty is required to be waived and the appellants do not wish to contest on the re-classification. 7. The learned DR points out that the department initially cleared the first consignment accepting their declaration. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause notice has invoked the provisions of Section 111(m), however, in the Order-in-Original the goods have been confiscated under Section 111(d) of the Act. Therefore, the department itself is not very clear as to on what grounds the item impugned has been confiscated. We also find that a similar issue was considered by the Hon ble Apex Court in the case of Akbar Badruddin Jiwani v. C.C. as reported in 1990 (47) E.L.T. 161 (S.C.), wherein it was held that the burden was always on the department to show that the importer had acted dis-honestly or with deliberate object of breaching the law and in such a case, mens rea was required to be established to impose penalty under Section 111(d) ibid. It was also held therein that heavy fine was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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