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TMI Blog2020 (2) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 registration of the cosmetic goods to be imported that a show cause notice dated 10.03.2014 was issued to the Appellant, though also to the importer proposing a penalty upon the Appellant under Section 114. The said proposal against the CHA was initially confirmed by the original adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 5. Per contra learned DR has made emphasis on para 9 and 10 of the order-under-challenge wherein Commissioner (Appeals) is impressed upon to have observed that Appellant CHA file the bill of entry a document which was untrue and incorrect on many material aspects as that of non declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 entries on the basis of documents received from the importer without making any enquiry from the importer regarding production of mandatory license from the ADC. Commissioner (Appeals) has also appreciated that to impose penalty under 114 AA, it is necessary to check as to whether the afore noticed non-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (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 be attributed to him. Onus was otherwise of the Revenue. There is no cogent positive evidence to prove the contrary. There might be intentional omission on part of importer but same cannot be presumed against the CHA unless & until proved. Hence, it is held that the Commissioner (Appeals) has wrongly imposed pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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