TMI Blog2007 (10) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,63,018/- against a bond executed by the assessee on 6-3-1997 and the same were subsequently transshipped from Mumbai to Chennai on execution of transit-bond and production of bank guarantee. A quantity of 399.471 MTs as per ullage survey report at the time of discharge was received at the appellant s factory premises from 21-3-97 to 22-4-97 and the same was bonded in two tanks, No. F603 and F610, on 29-4-97. The re-warehousing certificate issued by the Chennai Customs House on 29-4-97 had a validity period of one year. This period was extended by six months upto 5-9-98 by the Commissioner at the request of the party. The appellants requested for further extension of the bond period by six months, which, however, was rejected and the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reon @ 20% per annum under Section 28AB of the Act. The notice also proposed confiscation of the goods under Section 111(j) of the Act and penalties on the company and its Managing Director under Section 114A and Section 112(a) respectively of the Act. In his reply, the Managing Director admitted the charge leveled in the show-cause notice and prayed for a lenient view. In adjudication of the case, the Commissioner of Customs (Imports) passed the following order: (a) I order confiscation of 400 MTs of Base Mineral Oil V-60 imported under warehousing bill of entry no. Imp B 0001654 dated 5-3-97 valued at Rs. 50,63,018/- under Sec. 111(j) of the Customs Act, 1962. However, I allow the goods to be redeemed on payment of a fine of Rs. 20,00,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in 2004 (163) E.L.T. A53 (S.C.). Reliance has also been placed on Commissioner v. Jkon Engineering Pvt. Ltd. - 2005 (67) RLT 157 (Mad.) and Al-Falah (Exports) v. CCE, Surat - 2006 (198) E.L.T. 343 (Tri. - LB). Learned JCDR has contested the above arguments of the counsel by submitting that, the charge of clandestine removal of the goods having been admitted by the appellants, penalty under Section 114A of the Customs Act was rightly imposed on them as mens rea was established against them. He has added that the Commissioner had no discretion to reduce the penalty from what was prescribed under the said provision of law. In this connection, JCDR has relied on the Apex Court s judgment in Sony India Ltd. v. CCE, Delhi - 2004 (167) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that any penal liability of the company would not automatically render its Managing Director liable for penalty under Section 112(a). JCDR has questioned this proposition also. 6. After giving careful consideration to the submissions, we note that the goods in question had admittedly been removed clandestinely during its warehousing period and that, in this matter, mens rea of the appellant-company stands established. Therefore, there is no valid ground to contest the penalty under Section 114A. The Hon ble Supreme Court s ruling in Sony India s case (supra) squarely supports the case of the Revenue. In that case, it was found that the assessee had delayed printing of MRP on their packages with intent to evade payment of duty at ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads as under : [(2) The provisions of sub-section (1) shall not apply to cases where the duty or interest had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President] In this case, it has been found that the goods in question were cleared during the period May 1997 to January 1998. The duty liability arose during the said period, which was prior to 11-5-2001. The duty was paid in March 1999. In the circumstances, no interest is liable to be levied from the appellants under Section 28AB(1) of the Act. The demand of interest is therefore set aside. It is also on record that the goods were not physically available for confiscation. Redemption fine was not to be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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