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of omission or commission neither the appellant has dealt with the goods in any
manner. Neither there is allegation that the appellant had knowledge of alleged
misdeclaration by M/s. Balaji Oversees and its partnership firm. Accordingly,
the Learned Counsel prays for setting aside the penalty on M/s. Him Logistics.
30. Opposing the appeals the Learned AR appeared for the Revenue,
states that the averment of the appellant that they did not order for the food sup-
plements and the same was on account of a mistake on the part of the packing
staff of the supplier/exporter, is only an afterthought and not acceptable. Had
there been a genuine mistake, the supplier/exporter would have informed the
appellant importer well in advance as transit time from China to India is mini-
mum of 20 days. The bill of lading is dated 23 December 2015 and the container
was examined by the Customs on 13th January 2016. Further, such plea of erro-
neous supply was neither made at the time of examination of the goods nor in
the statement of Shri Kshitiz Sharma recorded on 13th and 14 January 2016. This
plea was taken for the 1st time after about 2 months, based on the letters of the
exporter dated 6th March 2016 and 9 March 2016. If the mistake was genuine, the
supplier would have come to know about the blunder much earlier and later or
sooner after the shipping. Further, the statement of the foreign supplier is not
reliable as he may be hand in glove with the appellants. Further it is established
law that in case of breach of a civil obligation, attracting penalty, existence of el-
ement of mens rea is not required for imposition of punishment/penalty.
31. So far the contention of the appellant that the statement of Kshitiz
Sharma has got no evidentiary value in view of the retraction made, it is stated
that such ground was not raised before the adjudicating authority. Mr. Kshitiz
Sharma did not complain of any ill treatment or coercion when he was produced
before the CMM. Further Mr. Sharma did not inform about the retraction of his
statement to the authority before whom he recorded the statement. Subsequent
retraction cannot take away the effect of the statement recorded under Section
108 of the Act, if the retraction of confession is not addressed to the officer before
whom the statement was given. It was only during the bail proceedings he stated
that the statements were obtained under duress and threat. Reliance is placed on
the ruling of High Court in the case of a CTO, Anti-evasion -I, Alwar v. Khandelwal
Food Products - 2018 (8) G.S.T.L. 112 (Raj.).
32. Further opposing the appeal of Him Logistics, the Ld. AR for the
Revenue states that admittedly, M/s. Him Logistics is not the customs broker in
the case but they have unauthorizedly served the role of customs broker for vest-
ed interest. M/s. Him Logistics have in fact played the role of an agent for the
importer - principal in this case. Not only they paid the duty levied on the goods
for clearance of goods, they also paid the service charges to customs broker -
M/s. KVS Cargo. The appellant also raised the question about seizure of the im-
ported goods which shows that they had vested interest in clearance of the
misdeclared goods.
33. Having considered the rival contentions, we find, admittedly
Mr. Kshitiz Sharma had been importing food supplements in the past. This fact is
evident from several bills of entry filed in the name of Kshitiz International. So
far valuation as adopted by the Revenue is concerned, we find that the unde-
clared/misdeclared goods, being of Chinese origin and manufacture, are not
similar or identical to the goods manufactured in USA and imported from USA.
Thus, we hold that the valuation done by Revenue under Rules 3, 4 and 5 is er-

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