ORDER
P.S. Bajaj, Member (J)
1. In this appeal, the appellant has made challenge to the impugned order in appeal vide which the Commissioner of Customs (Appeals) has affirmed the order of the adjudicating authority who directed the absolute confiscation of 406 pieces of Artistic Brass Artware and 177 dozen/boxes of Incense Sticks being obscene and misdeclared respectively and imposition of penalties on the appellants as detailed in the order in original.
2. The learned Counsel has contended that the export items in question i.e. 406 pieces of Artistic Brass Artware were purchased by Ms. Sarl Ganesha Enterprises, France through their Manager Mr. Deonl who had visited India and were handed over in packed condition to the appellants for sending/exporting the same to them in France and as such, the appellants had no knowledge that those were obscene. Similarly, regarding misdeclaration of 177 dozen boxes of incense sticks, the appellants did know about it, as these were also purchased and then handed over to the appellants by the above said company in packed condition for dispatching them to France. The appellants acted in a bonafide manner and as such, no penalty could be imposed on them under Section 114(i) of the Customs Act. The learned Counsel has also contended that there is no tangible evidence on record to prove that the artistic pieces (406 in Nos.) were obscene. Those pieces were independently packed and could be used as such. The Counsel has also referred to the allegations in the show cause notice that out of total 406 pieces, 204 pieces were of brass Ganesha, brass baby figure, brass dragon and Ganesha mix while the remaining pieces were of a female figure, and only on matching the male and female figures at the time of examination by the Examining Inspector, these had been declared as obscene by the Customs Authorities, without getting any expert opinion. The Counsel has further argued that expression ‘obscene’ has not been defined under the Customs Act and as such, on visual examination by an officer, the seized brass pieces could not be declared as obscene in the absence of expert opinion. Therefore, the goods could not be confiscated.
3. Regarding the misdeclaration of the goods, the learned Counsel has contended that whatever quantity was disclosed in the bills accompanying the brass pieces and Incense sticks, the same was declared in the shipping bills and the appellants had no knowledge about variation in the quantity of goods, declared in the documents. He has further argued that appellants had no mala fide intention in making misdeclaration, as the drawback involved was even less than Rs. 2,000/-. The misdeclaration, according to the Counsel, in one pack of the Incense sticks as Mysore Sandal Soap was only due to a typographical mistake committed by the seller of the goods and the appellants had no role to play therein. Therefore, the penalty imposed on the appellants is unjustifiable and deserves to be set aside.
4. On the other hand, the learned SDR has reiterated the correctness of the impugned order and contended that since on matching the male and female Artistic brass pieces, obscenity has been found and there was a misdeclaration of other goods, the impugned order regarding confiscation and imposition of penalty has been correctly passed.
5. I have heard both the sides and gone through the record. From the record, it is evident that the appellants from the very beginning had taken the stand that the seized goods i.e. artistic brass pieces detailed above, were purchased by M/s. Sarl Ganesha Enterprises through their Manager Mr. Deonl from different places in India on visit and these were handed to them simply in a packed condition for sending the same to France and that they had no knowledge of their obscenity. This stand/version of the appellants also finds corroborated from the letter sent by M/s. Sarl Ganesh Enterprises to the Joint Commissioner of Customs, after adjudication wherein they had corroborated all these facts, which were disclosed at the time of seizure of the goods by the appellants to the customs authorities. They have categorically stated that the appellants had no role in the purchase of the seized goods as these were purchased by their manager on visit to India and that the appellants had no knowledge about the nature of the goods. Regarding the obscenity, they had also mentioned in their letter that it was not even in their knowledge that these goods were obscene and prohibited goods for the purpose of export. In the face of these facts, in my view, no mens rea could be attributed to the appellants in the export of any obscene goods. Similarly, the misdeclaration of other goods i.e. incense sticks which too were purchased by the manager of above said company and handed over to the appellants in a packed condition, along with other goods for sending them to France, cannot be attributed to the appellants as they disclosed the same quantity and nature of goods, in the shipping bills which were mentioned in the accompanying invoices. It may also be stated that no show cause notice was issued to M/s. Sarl Ganesh Enterprises France when the appellants disclosed the entire facts during the investigation and disclosed their name as a real purchaser of the goods from India. The appellants have neither purchased the goods nor claimed ownership of the same. The impugned order regarding the imposition of penalty on the appellants in the light of discussion made above, is liable to be set aside.
6. The question as to whether 406 pieces of Artistic Brass Artware are obscene or not, is not required to be gone into in the present appeal as the appellants have not claimed ownership of the goods. The goods were not even purchased by them.
7. Consequently, the impugned order against the appellants imposing the penalties on them under Section 114(1) of the Customs Act is set aside. The appeal of the appellants accordingly stands allowed.