TMI Blog2020 (2) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... st be ample evidence about the knowledge and intention of the person who is concerned with the import of goods. Further perusal of his findings revealed that there is no such check conducted by Commissioner (Appeals). No such evidence is otherwise apparent from the record to prove that the CHA had ulterior motive of tax evasion or to falsify his voluntary statement about simple unawareness towards the mandate of registration certificate while importing the cosmetics. Accordingly, the findings of Commissioner (Appeals) that the CHA did not make even the minimum efforts to ensure the veracity of the submissions made to the department is not sufficient to hold that the said failure was intentional and that the CHA had the mensrea to facilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assailing the Order-in-Appeal No. 47/2018 dated 28.02.2018 vide which the penalty under Section 114AA of Customs Act, 1962 has been confirmed as against the Appellant/the Custom House agent. 2. The relevant facts in brief are that the Appellant, being a CHA firm had filed a bill of entry No. 3212091 dated 07.09.2013 on behalf of M/s Dheeraj Gupta for home clearance of unbranded cosmetic. The department on the basis of specific intelligence regarding import of branded goods had examined the goods and found the cosmetics of Lakme and Lotus brands, though with some unbranded cosmetic items as well. Since the Drugs and cosmetics (4th Amendment) Rules, 2010 were already in existence. Since 1st April, 2013 which required the mandatory regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en made applicable from 01.04.2013. The importer is denied to have informed him about requirement of any registration at the time of the filing of the Bill of entry which was not demanded for want of knowledge of CHA for the aforesaid Rules. It is impressed upon that the statement is sufficient to reflect that there was no mensrea in part of the Appellant to make any false and incorrect declaration. No question arises of imposing any penalty under Section 114AA of the Customs Act. While relying upon the decision of Fast Cargo Movers Vs. Commissioner of Customs, Jodhpur reported in 2018 (362) ELT 184 (Tri.Delhi), learned Counsel has prayed for the order of Commissioner (Appeals) to be set aside and the appeal in hand to be allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he import of goods. 8. From the statement of the Appellant as brought to my notice by his learned Counsel , it is a clear deposition that the Drugs and Cosmetics (4th Amendment) Rules, 2010 were recently made applicable i.e. w.e.f 01.04.2013 due to which the CHA had no knowledge about the mandate of the said Rules as such he did not insist for any registration certificate about the impugned cosmetic. There is no suggestion in the show cause notice about the intention or knowledge of the CHA about the said registration to be mandatory. 9. I observe that Commissioner (Appeals) also has acknowledged the aforesaid voluntary statement of the CHA which he has observed to be true, holding that Appellant would have simply filed the bills of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and supported the wrong doer i.e. the importer in doing the wrongful act of attempting to export the branded cosmetic goods in violation of Cosmetic Rules, 2010. Section 114A of the Act is applicable only when there is sufficient evidence about prior knowledge of wrong doing or existence of deliberated intend (malafide). It also provides for imposition of penalty for furnishing incorrect or false declarations and that such declaration should also be intentional with prior knowledge. 13. In view of the entire above discussion, it has been held that the appellant since was unaware of the mandatory registration while importing branded cosmetics, as required by the Cosmetic Rules, 2010 being very recent in time. The malafide intent cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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