TMI Blog2014 (10) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be accepted that they had no knowledge of the radioactive nature of the goods in question. In this view of the matter, I uphold the impugned order except the amount of penalty sustained at ₹ 5 lakhs on the firm and reduce it to ₹ 2,00,000 - Decided partly in favour of Revenue. - Appeal No.C/1324 & 1325/06 and C/14/07 - Final Order Nos. A/988-990/2014-WZB/C-IV(SMB) - Dated:- 8-5-2014 - Anil Choudhary, J. For the Appellant : Shri Anil Balani, Adv. For the Respondent : Shri M S Reddy, Dy. Commr. (AR) JUDGEMENT Per: Anil Choudhary: These cross appeals arise from a common Order-in-Appeal No. 480 481/2006/MCH/JT/Gr-IIA/06 dated 6.10.2006 passed by the Commissioner of Customs (Appeals), Mumbai, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it No. FLC 4001496 dated 18.1.1996. As per the Letter of Credit, the last date of shipment was 15.3.1996 and the last date of presentation of document was 21.3.1996. 3.2 The suppliers shipped the consignment under the cover of their invoice No. F 19121-96 dated 2.5.1996 and B/L No. 318128493 dated 15.3.1996. The appellant received the copies of invoice and B/L directly as well as through their authorized Bankers. The appellant filed the Bill of Entry No. 6587 dated 16.5.1996 seeking clearance of the goods through their CHA M/s K.M. Ganatra Co. 3.3 It is further submitted by the appellant that Thorium Nitrite containing 1% Cerium was imported for trading as the said chemical is used in the manufacture of Gas Mantles and the time is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the facts and circumstances, it had abandoned the goods without mentioning of Section 23 of the Act. 4. The Revenue issued summons after detaining the goods on 7.11.1996 and also conducted search and seizure in the office and residential premises of the firm and its partner and also recorded the statement of the Manager of the firm Mr. Shetty and the appellant Mr. Manmohan Sing Kohli. Under the belief that the appellant have imported radioactive goods, Thorium Nitrite which is not importable without recommendation of the Department of Atomic Energy as recorded in Part-II para-156(A)(13) on negative list of Export-Import Policy, 1992-97. 4.1 Prior to this the Customs department has got the goods tested from the Bhabha Atomic Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the supplier, they had abandoned the goods and had not got the goods cleared for home consumption. This fact is also supported from their correspondence dated 21.8.1996 with their Banker in which they had advised the Bank to return the documents to the Bank of the supplier. Further, support is drawn to the fact of abandonment, that in response to notice of Mumbai Port trust for auction of the goods in question, they had not raised any objection to the goods being auctioned for the recovery of duty and other port dues. This fact is supported from letter dated 8.11.1996 of the Assistant manager (Valuation), Mumbai Port Trust addressed to the Assistant Director, Directorate of Revenue Intelligence, Mumbai wherein it is stated that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities, the hazardous nature of the goods, penalty is attracted for the contravention of the statutory obligation. The concept of mens rea or guilty intention is immaterial in the facts and circumstances. Further, holding that the valuation of the goods appeared to be high side, the penalty on the firm was reduced to ₹ 5 lakhs and the penalty on the partner Shri M.S.Kohli was set aside following the ruling of the Tribunal in the case of Swem Industries - 2003 (154) ELT 417 (T) and Jagprakash Synthetics - 2003 (156) ELT 805 (T), wherein it is held that penalty cannot be imposed both on the firm and its partner/proprietor. 5. The learned Counsel for the appellant firm vehemently argues that in the facts and circumstances borne on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at any time before the order for clearance of the goods for home consumption under Section 47 is made. The appellant is pressing on the fact that despite of the act of abandonment in not opposing the auction by the Port Trust and again returning the documents through it Bankers, support their contention that they had abandoned the goods. Further, they had not taken any steps for getting the good cleared for home consumption after assessement of the Bill of Entry on 6.6.1996 and accordingly prays for setting aside of the penalty sustained by the Commissioner (Appeals). 6. The learned AR appearing for the Revenue relies on the Order-in-Original and the order of the Commissioner (Appeals) and further emphasises that the appellants have be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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