2023 (5) TMI 990 - AT - Customs

Levy of penalty under Sections 112 (a) and 112 (b) of the Customs Act, 1962 - allegation of importing consignments from Hongkong and China grossly mis-declaring the description and value of the consignments using the IEC registered in the name of other person and shell companies - burden to prove the allegations on appellant, cannot be fulfilled - no corroborative statements recorded - HELD THAT:- During the course of investigation, it is found that on 25.08.2017, the appellant visited the DRI Office along with one Shri Sameer Sharma, on whose persuasion, the appellant came to the DRI Office to facilitate the clearance of the impugned consignment, but it is very strange, that when Shri Sameer Sharma has also visited DRI Office along with the appellant, why the statement of Shri Sameer Sharma, who is alleged to be tout in the import of the impugned goods, was not recorded? It is found from the record that it has been alleged that the appellant has abeted to mis-declare and under-value the impugned goods, but in fact, the impugned consignment were already intercepted by DRI and found mis-declared and under-valued. In that circumstances, how the appellant was involved in abetment of the impugned consignment, which were already found mis-declared and under-valued.

This said issue has come up before this Tribunal in the case of Smt.Sushma [2021 (7) TMI 578 - CESTAT NEW DELHI], wherein the Tribunal has held There is no mention of any involvement of the appellant either in the form of instigation or conspiracy to aid the impugned fraudulent export. Though said statement got retracted vide his letter dated 26.08.2011 to Director General, DRI. But said retraction stands rebutted from letter No.50 D/25/2011 dated 02.09.2011 (RUD-II) and also from his own subsequent letter dated 11.11.2011 (RUD-12) where he informed Director General, DRI, about him to be the authorized person of all the companies in Table-I. All the documents collected & statements recorded by the department are absolutely silent about any alleged role of the appellant.

Further in the case of Shri Ram & Another [1974 (11) TMI 100 - SUPREME COURT], the Hon’ble Apex Court has examined that in order to constitute abetment, the abettor must be shown to have “intentionally” aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough to comply with the requirements of abetment. The Court cannot heap one assumption to give an another conduct of the appellant meaning which, it does not naturally bear at the best. In that circumstances of the case, the appellant wanted to help the clearance of the consignment, which does not conclude that the appellant has abeted in committing the crime.

Thus, it is clear that the appellant came to the DRI Office with one Shri Sameer Sharma, whose statement was not recorded at all. The revenue has failed to prove that the appellant was involved in mis - declaration and under-valuation of the import consignments (which were already seized) without any cogent evidence - penalty on the appellant under Section 112 (a) & 112 (b) is not imposable - appeal allowed.