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2019 (12) TMI 248 - CESTAT CHENNAIImposition of penalty u/s 112 (d) and 114AA of the Customs Act, 1962 on Customs Broker - appellant was only a Customs Broker and not the importer - the only allegation levelled against the appellant is that the appellant did not inform the Revenue that the importer did not possess licence for import of R-22 gas - HELD THAT:- A conjoint reading of provisions of section 112 and section 114AA, makes it clear that there should be an intentional or deliberate act or omission and even the motive is attributable to the act of abetment to do any act or omit to do any act. Hence, the requirement of mens rea becomes sine qua non for imposing penalty on the Customs Broker. Admittedly, the appellant being the Customs Broker has been fastened with the penalties on the ground that its activities amounted to abetment. Also ‘abet’ or ‘abetment’ is not defined in the Customs Act. In the Order-in-Original, the Adjudicating Authority has inter alia confirmed the allegations with regard to non-presentation of the imported goods for examination and that the appellant had not informed the Customs Authorities about the non-possessing of licence by the importer for importing the R-22 gas while processing the amended Bill-of-Entry. It is also a fact borne on record contrary to the above findings that the cargo was under detention from 01.04.2016 onwards and hence, there was nothing that the appellant being the Customs Broker was able to present. These allegations per se are not sufficient to fasten with the penalty of the nature impugned. The appellant has performed its duties as per the CBLR in terms of the licence granted to it. A perusal of the impugned Order-in-Appeal makes it evident that the appellant did advise the importer as to the requirement of import licence, which appears to be a sufficient compliance insofar as Regulation 11 (d) is concerned because, getting the required licence was, in any case, the duty of the importer. Further, from a bare reading of Section 114AA it is evident that the said Section could be invoked only on the establishment of the fact that the declaration, statement or document made/submitted in transaction of any business for the purposes of the act is false or incorrect and therefore, without establishing that such declaration, statement or document was false or incorrect in any material particular, this Section cannot be invoked. Revenue has not been able to establish the mala fides which is the quintessence of Sections 112 (a) and 114AA ibid. and therefore, the impugned penalties are required to be deleted - Appeal allowed - decided in favor of appellant.
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