WIPRO LTD. Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THIS appeal challenges the imposition of fine of Rs. 3.5 lakhs and penalty of Rs. 1.75 lakhs. The appellant had misdeclared the goods in the bill of entry. On examination it was found that they were used in parts of computers imported in violation of para 217 of Exim Policy. The appellants do not contest the aspect pertaining to misdeclaration. However it is their contention that they were under bona fide belief and they had no mala fide intention in contravening law and there is no mens rea involved in evading duty. Therefore, learned Counsel submits that penalty is not imposable in the facts and circumstances of the case. He takes support from the Tribunal ruling rendered in the case of the Meirs Pharma (India) Pvt. Ltd. [2004 (167) E.L.T. 53]. It is his submission that the Tribunal has consistently been holding that when old second -hand machineries are imported without license for their bona fide use, then the penalty has to be scaled down to 5% of the value as held in the case of M/s. Big Apple Computer v. CC, Hyderabad vide Final Order dated 14 -2 -05. Learned SDR also relied on the judgment rendered in the case of Mudra Offset v. CC, Bangalore [2004 (175) E.L.T. 470] wherein for violation of conditions of policy by importer, the Tribunal has held that goods are liable for confiscation and for imposition of redemption fine and penalty.

(2.) ON a careful consideration, I notice that original authority has cleared the importer of the charge of mala fide intention to evade duty in the matter and has given the benefit of bona fide belief. In such a circumstance, the imposition of penalty is not justified as held in the case of CCE v. Umang Computers 2002 (149) E.L.T. 553 hence, penalty is required to be set aside. Ordered accordingly. In so far as the order of confiscation and fine is concerned, I notice the same is justified, as there was a clear violation of Exim policy. However, the Tribunal in the case of Big Apple Computer (supra) relying on earlier orders of the Tribunal has held that when the goods have been imported for bona fide use then the RF has to be to the extent of 10% of the value. In the present case, the value of the property is Rs. 12.5 lakhs and hence the Redemption Fine is reduced to Rs. 1.25 lakhs in the light of the cited judgment. The impugned order is modified accordingly. The appeal is disposed of in the above terms.