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TMI Blog2024 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... nal fall into error in concluding that the appellants/assessees were culpable and/or were liable to the penalty imposed under Section 112 of the Customs Act and that the goods were liable for confiscation, in the circumstances of the case?" 3. Appellant are in the business of inter alia supplying various types of Very Small Aperture Terminal (hereinafter referred to as "VSAT") and its components to various customers. 4. Appellants are authorized dealer of wireless equipment possessing a dealer possession license issued by Department of Telecom, Ministry of Communications and IT. 5. Appellants imported various components of VAST during December 2007 and March 2009. 6. It is not in dispute that the import was subject to production of a license from the Wireless Planning and Co-ordination Wing of the Department of Telecommunication (hereinafter referred to as the WPC Licenses). It is also not in dispute that subject import was carried out without a valid WPC license. 7. The issue arose when the Directorate of Revenue Intelligence found that the service providers to the appellants i.e. Alliance Strategies Ltd (ASL for short) which allegedly had the responsibility of obtaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the appellants submits that the quantum of redemption fine and the penalty imposed on the appellant is also on the higher side and disproportionate to the alleged conduct attributed to the appellants for the subject import. 17. Learned counsel relies on the decision in the case of Akbar Badrudin Giwani v Collector of Customs, Bombay, (1990) 2 SCC 203 to contend that where the penalty and fine in view of confiscation is extremely harsh and excessive then the same is liable to be set aside. It was further contended that for the imposition of the penalty, the party must act deliberately in defiance of law or ought to be guilty of contumacious or dishonest conduct but not in cases where there is a technical or venial breach. Hence, in the facts of the present case, the redemption fine and penalty being harsh and excessive is liable to be reduced. 18. Further reliance is placed on the judgment of a Single Judge of this Court in Jain Exports Pvt Ltd vs UOI, 2009 SCC OnLine Del 2575: (2010) 250 ELT 15 to contend that where discretion is given to the authority for imposition of penalty, said discretion has to be judicially exercised and cannot be arbitrary. 19. Refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable, (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding the value of the goods or five thousand rupees whichever is the greater......" 27. Section 112 (a) of the Customs Act lays down that any person who in relation to any goods interalia does any act which would render such goods liable for confiscation is liable to penalty. Section 112(b) stipulates that any person who inter alia acquires possession of any goods or is in any way concerned in carrying, removing, depositing, harbouring or deals with any goods which he knows or has reason to believe are liable for confiscation under Section 111 of the Customs Act, is liable to a penalty. The penalty stipulated is not exceeding the value of good or rupees five thousand whichever is greater. 28. Section 112 (a) of Customs Act also applies on a strict liability concept. It does not require any mens rea. Section 112 (a) of the Customs Act may be contrasted with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nearly 19% of the value of the goods and the fine imposed is Rs 15 Lakhs on each of the appellants which translates to about 4.75% (totalling to 9.5%) of the value of the goods. 36. As we have held the confiscation of the goods under section 111 and imposition of penalty under section 112 (a) of the Act are on a strict liability principal, the question of law "Did the Tribunal fall into error in concluding that the appellants/assessees that the appellants/assessees were culpable and/or were liable to the penalty imposed under Section 112 of the Customs Act and that the goods were liable for confiscation, in the circumstances of the case? is answered in favour of the department/respondent and against the assessees. 37. With regard to the submissions made by learned counsel for the appellants that the quantum of redemption fine and penalty imposed is harsh and excessive, we of the view that the same is within the discretionary powers of the authorities. Discretion has been exercised by the Commissioner of Customs of imposing penalty and fine and said discretion having been upheld by the Tribunal, does not give rise to a question of law, leave alone a substantial question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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