TMI Blog2006 (9) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal are as under :- 2.1The assessee, the first respondent herein, imported Tin Free sheets Waste/Waste Defective sheets and the goods were originally assessed based on the declaration made by the assessee. But, on the basis of intelligence that the consignments contained prime quality Tinplate sheets, the consignments were intercepted, detained and re-examined in the presence of independent witnesses. The samples were tested and it was found that the consignments could not be classified as Tin Free steel sheets, but they could be classified as Prime sheets. 2.2Since there was mis-declaration and under-valuation of goods, summons was issued to the assessee. The Proprietor of the assessee, by name, Vinay Bhansal appeared and sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee wilfully suppressed the facts and misdeclared the goods with intention to evade duty, set aside the order of the original authority. Challenging the same, the Revenue has preferred this appeal raising the following questions of law : 1. Whether Section 112 of Customs Act 1962 by which the penalty is levied, the burden of proof that the importer had acted bona fide is on the importer and that the importer cannot be heard to say despite misdeclaration it would be upto the Department to prove that there was deliberate intention on the part of the importer to misdeclare? 2. The Tribunal failed to note that the Commissioner had, on an appreciation of facts and materials available on record, clearly held that the loading at tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. Heard Mr. S. Udayakumar, learned counsel appearing for the appellant and perused the order of the second respondent as well as the original authority. 4.At the outset, we are of the view that the questions of law referred to above have not been happily framed, as the entire issue in this appeal revolves on the intention of the assessee in making such a misdeclaration with a view to evade duty, and accordingly, we reframe the question as under : "Whether the element of mens rea is required for imposition of punishment under the Customs Act?" 5.Learned Counsel appearing for the appellant submits that the Tribunal has failed to consider the reasonings given by the original authority on the basis of evidence on record, but, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te has occurred and it is wholly unnecessary to ascertain whether such a violation was intentional or not. The breach of a civil obligation which attracts a penalty under the provisions of an Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention or not." 8.Applying the above ratio to the facts of the case, we find that though the Tribunal has recorded a finding of fact that it was the supplier who by mistake loaded tin sheets waste which were not ordered by the assessee, the Tribunal rendered its decision on the basis that the Revenue has not shown that the assessee had wilfully suppressed the facts and had misdeclared the goods with intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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