Mens rea is not a condition precedent for levy of personal penalty on violation of the provisions of the Act.

RAJU, J.

The above reference came to be made under Section 130(1) of the Customs Act, 1962 at the instance of the applicant - Company to refer the following question for our consideration :

"Whether the Tribunal was correct in holding that nomens reawas required for levying personal penalty under Section 112(a) of the Customs Act, 1962 ?" *

2.The relevant facts to be noticed in appreciating the question referred for our consideration are that the applicant imported palmolein by m.v. Tai Tung which arrived at Madras Port on 6-1-1979 and got them cleared under "Open General Licence"(OGL) appearing against Sl. No. 8 of Appendix 10 of the Import Trade Control Policy for the period April, 1978 to March, 1979. The date of shipment of the consignment was shown by the importer on the bill of entry as 29-11-1978 as found on the relative bill of lading which bore that date. In the light of the above, declaration under Section 46(4) of the Customs Act (hereinafter referred to as "the Act") which purported to show that the goods were shipped within the validity period of the O.G.L., the goods were allowed clearance by the proper officer under Section 47 of the Act under the authority of the above said O.G.L. By a Public Notice No. 91, dated 2-12-1978 import of palmolein under the O.G.L. was cancelled and its import was canalised through STC, with effect from 2-12-1978. The respondent on further enquiries found that the vessel which brought the applicant's cargo of palmolein arrived at the loading port of Kelang on 24-12-1978 and worked till 30-12-1978 and therefore, could not have loaded the cargo on 29-11-1978 as shown to have been done on that date in the bill of lading produced at the time of clearance through Customs. The bill of lading though normally accepted as evidence of loading of goods issued by the career to the consignor, the respondent's Department felt that the order of release under O.G.L. was passed on a misdeclaration of the date of shipment in the bill of lading by the applicant and after issue of show cause notice, it was held that the bill of lading could not possibly have borne a genuine date prior to 24-12-1978 since the ship which carried the said cargo called at the loading port of Kelang only on 24-12-1978 and concluded that the importer had arranged to have the bill of lading pre-dated and relying upon the said manufactured evidence got the goods cleared through Customs under O.G.L. It was also held that the import in question of the relevant goods under the cover of O.G.L. was incorrect, improper and illegal and that the importer, therefore, was liable to personal penalty under Section 112 of the Act. After noticing the fact that the goods had already been allowed to be cleared for home consumption and were not available for confiscation and hence no order could be made with regard to them, the respondent imposed personal penalty of Rs. 1, 50, 000/- under Section 112 of the Act.

2.The applicant thereupon filed a revision under Section 113 of the Act as it stood before amendment on 11-10-1982, to the Government of India, which, thereafter came to be transferred to the Customs, Excise and (Gold) Control Appellate Tribunal, South Regional Bench at Madras, in terms of Section 131B of the Act to be heard as an appeal before it. After hearing the submissions of both sides, the Tribunal concurred with the order of the respondent - Collector of Customs and held that the order of the respondent was justified in law on the facts and circumstances of the case and dismissed the appeal by the order dated 24-12-1985, whereupon the applicant moved for a reference and in the light of the various rulings placed before the Tribunal on either side, the Tribunal though fit to refer the question as to the requirement or otherwise of the element ofmens reafor levying personal penalty under Section 112(b) of the Act.

3.Mr. Habibulla Badsha, learned Senior Counsel appearing for the applicant, while reiterating the stand taken