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2022 (5) TMI 1320 - AT - CustomsLevy of penalty u/s 112(a) and 114AA of the Customs Act - detention of yacht - allegation is that yacht was declared as TP Cargo and simultaneously filing another IGM for the same yacht being filed raised the suspicion of foul play - evasion of Customs Duty - HELD THAT:- The final order of Settlement Commission leads us to an irrefutable conclusion that there was indeed an attempt to improperly import certain goods (Yacht here) which ultimately was confiscated within the meaning of Customs Act. It is a single transaction and all the notices are a part of the same transaction, may be of different sides of the same coin. In its order, the Settlement Commission had also imposed fine as well as penalty on the applicants/co-applicants before it, which have been paid by them. Hence, clearly, the improper importation stands established, we only have to look into the magnitude of active/passive contribution by each of the appellants before us, in assisting the main culprit in the activity of improper importation. It has been brought on record that Shri Gautama Dutta was instrument in instructing the other appellants Shri Sohel Kazani of M/s. Assar Lines and M/s. Interport Impex Pvt. Ltd. based on which an email was sent by Shri Sohel Kazani to Link Shipping & Management System. Shri Kiran Kamat, MD of Link Shipping & Management System has also admitted that they had acted as agents of the vessel MVA during its call at the port of Mumbai and carried out all acts and things for discharge of cargo (i.e. Yacht Tian) at Bombay Port, which action was based on the instructions of their principal. Shri Kiran Kamat, MD has also specifically admitted that it was based on the request of M/s. Assar Lines that the cargo in question was declared as transhipment cargo. The initial burden to prove proper importation, under Section 123 ibid. was on the notices, some of whom have accepted the liability and thereby resulting in the non-discharge of the burden. The natural consequence which flows from the above is that the burden cast on the notices remained un-discharged and hence, they have to suffer consequence, namely the penalties in this case. This is because, they have all been identified to be part of different sides but of the same transaction. Thus, revenue has made out a case for the levy of penalty on the appellants - the impugned order modified to the limited extent by sustaining penalty to the extent of 15% of penalty imposed on them by the adjudicating authority.
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