TMI Blog2016 (9) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... has arisen in due to a bona fide mistake. This view is further strengthened by the fact that the appellant himself has informed the customs authorities about the mistake even before the consignment was taken up for examination. The Commissioner in the impugned order has fairly recorded that the mistake could not have gone unnoticed. - there is absolutely no malafide. Confiscation and penalty imposed on the ground that the party failed to file an amendment to the shipping bill as required under law even after they realized that they had filed wrong particulars. Similar issue decided in the case CCE, Calcutta - II vs. India Aluminium Co. Ltd [2010 (9) TMI 275 - SUPREME COURT OF INDIA] - the steps by way of penal action not warranted - conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken back to town on the basis of a bank guarantee for ₹ 30 lakh. However show cause notice dated 23/11/2010 was issued to the appellant and the case was adjudicated by the Commissioner for mis-declaration of goods for export under claim for duty drawback. 3. It was submitted by the appellant that there was no intention to mis- declare the goods. Their submission was that it was a case of bona fide error of wrong dispatch of invoice-cum packing list to the CHA who filed shipping bills accordingly. There were 2 export orders of different quantities to be executed - one order in the month of September 2010 and another in October 2010. The goods were to be supplied by the same manufacturer and to be exported to the same foreig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in the show cause notice. During the cross-examination of the Customs officers of ICD, it was borne out that the panties fax requesting for retention of the consignment was received prior to action initiated by the officers to seize the consignment. I have carefully produce that letter dated 18/09/2010 and find that the letter Was undisputedly received in ICD on 18/09/2010 between 8 PM and 9 PM before the impugned goods where ceased. Another point brought to my notice is that as the drawback was above ₹ 1 lakh, 50% of the consignment was required to be physically checked in terms of boards circular number/2002 - CUS dated 23rd of January 2002 and the 50% less quantity could not have admittedly gone unnoticed. In view of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf has informed the customs authorities about the mistake even before the consignment was taken up for examination. The Commissioner in the impugned order has fairly recorded that the mistake could not have gone unnoticed. Thus from the facts it is seen that there is absolutely no malafide; however the Commissioner has chosen to order confiscation of the goods as well as impose redemption fine and penalties on the ground that the party failed to file an amendment to the shipping bill as required under law even after they realized that they had filed wrong particulars. In the circumstances of the case we find these steps by way of penal action are not warranted. We find that in CCE, Calcutta - II vs. India Aluminium Co. Ltd. reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of invoices. We note that in the invoices the value given was the reduced value on account of the warranty allowed by the foreign supplier. We are of the view that it was a bona fide mistake and we note that the Appellants came out truthfully as and when they were asked to produce the requisite documents. Looking to all the facts and circumstances of the case , we confirm the demand of duties, confiscation and imposition of penalty are set aside. The Appellants shall be entitled to consequential relief, if any, in accordance with law Sorento Granito Pvt. Ltd. vs. CC, Visakhapatnam reported in 2009 (245) E.L.T 657 (Tri. - Bang.) set aside order on confiscation, penalty and fine as it was a case of a bonafide mistake and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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