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2019 (11) TMI 72 - HC - CustomsImposition of penalties u/s 112 (b) and 114AA of the Customs Act, 1962 on the Director of the Respondent - CHA’s direct involvement with the importer or not - HELD THAT:- Pertinently, it was noted that the Central Bureau of India (CBI) had investigated the issuance of bogus exemptions certificates and had not charge-sheeted the CHA. The charge-sheet was filed only against the proprietor of the importer and its authorized signatory and the proprietorship concern. The CBI in its charge-sheet recorded that the CHA had retained photocopies of the bills of exchange for its office records and had forwarded the original copies of the same along with his bill to the importer for getting payments. Thus, CHA’s direct involvement with the importer was not established. This fact prevailed upon this Court in dismissing the appeal filed by the Customs Department, not finding it to be fit to impose harsher penalty. The Customs Department is aggrieved by the deletion of the penalties imposed on the CHA. In respect of the show case notice dated 06.03.2013, penalty has been imposed under Section 112 (b) as well as 114AA of the Act. A perusal of the said provisions clearly reveals that the penalty under the said provisions can be imposed wherever there is an element of mens rea or conscious knowledge, which is a sine qua non for imposition of the penalty - The facts of the case in hand do not reveal any such element of mens rea or conscious knowledge qua the importer. There is no active role attributed to the Respondent, which justifies the imposition of the penalty under Section 112 (b) and Section 114AA of the Act. Nothing has emerged even in the criminal investigation. Imposition of penalties u/s 112 (a) of Customs Act - HELD THAT:- For imposition of penalty in respect of the cases falling under Section 112 (a) of the Act, mens rea may not be required to be proved as condition precedent, however, when it comes to imposition of the penalty on an abettor, it is necessary to show that the said essential element/ ingredient is present - In the present case, there is no element of mens rea or conscious knowledge which can be attributed to the CHA. The investigation carried out by the CBI and other facts reveal that the CHA acted bona fide and merely facilitated the imports on the strength of the documents which were handed over to him by the importer -There is no sufficient material on record to show that the CHA was actively involved in the fraudulent availment of the exemption by the importer, warranting levy of personal penalty. Appeal dismissed.
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