2025 (4) TMI 1605 - AT - Customs

Levy of penalty under Section 117 of the Customs Act 1962 on the Customs House Agent (CHA) and Rajiv Sahni who was working merely as Business Development Associate of M/s. Essar Oil Limited - alleged violations related to clearance of goods under a Project Authority Certificate (PAC) - no direct contravention by the CHA is established. Penalty on Customs broker - HELD THAT - After going through the provision of Section 46 of the Customs Act it is clear that under Section 46 of the Customs Act duty has been imposed upon the importer of the goods and not upon the Custom Broker or Customs House Agent therefore no penalty can be imposed upon the appellant Mahendra N. Thacker who worked as Custom Broker for the violation of Section 46 by the importer. From the perusal of the provision of Section 117 it is clear that where there is no express penalty elsewhere in the Act then penalty may be imposed under Section 117 for contravention of any provisions of this Act. In the impugned order the Adjudicating Authority has not made it clear that the appellant Mahendra N. Thacker violated which provisions of Customs Act which he was duty bound to follow. Therefore penalty cannot be imposed upon the appellant arbitrarily without clearly defining the violation of any specific provision of the Customs Act. As far as the violation of Customs House Agents Licensing Regulations 2004 is concerned no penalty can be imposed upon the Customs Broker or CHA and only his licence may be suspended or may be cancelled under Regulation 20 - the learned Adjudicating Authority has imposed penalty upon the appellant M/s. Mahendra N Thacker arbitrarily without proper justification and the order imposing penalty upon the appellant Mahendra N Thacker is liable to be set aside. Penalty on Shri Rajiv Sahni - HELD THAT - There is sufficient evidence on the record which prove beyond doubt that Shri Rajiv Sahni Business Development Associate (BDA) was on the lookout for potential bulk buyers of the HSD imported by M/s. Essar Oil Limited. He was well aware that projects funded by World Bank are eligible to obtain Customs Duty free HSD for use in the project. Contractors doing the project work aided by the World Bank approached him for help and procurement of duty free HSD as they were in possession of Project Authority Certificate. Shri Rajiv Sahni helped them to register themselves with M/s. Essar Oil Limited to procure imported Customs Duty free HSD and to complete all the necessary formalities - from the material available on the record it is clear that Shri Rajiv Sahni played a key role in the diversion of the imported HSD cleared under PAC in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted in the diversion for 460 KL HSD valued at Rs. 89, 13, 340/- and having a duty liability of Rs. 23, 08, 357/-. Therefore the order of the Principal Commissioner imposing penalty of Rs. 2, 00, 000/- on Shri Rajiv Sahni Business Development Associate of M/s. Essar Oil Limited is sustainable and is liable to be confirmed. Conclusion - i) Under Section 46 of the Customs Act duty has been imposed upon the importer of the goods and not upon the Custom Broker or Customs House Agent therefore no penalty can be imposed upon the appellant Mahendra N. Thacker who worked as Custom Broker for the violation of Section 46 by the importer. ii) Shri Rajiv Sahni played a key role in the diversion of imported HSD cleared under PAC in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted the diversion for 460 KL HSD valued at Rs. 89, 13, 340/- and having a duty liability of Rs. 23, 08, 357/-. Appeal dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether penalty under Section 117 of the Customs Act, 1962 can be imposed on the Customs House Agent (CHA) for alleged violations related to clearance of goods under a Project Authority Certificate (PAC) when no direct contravention by the CHA is established.

- Whether the Customs House Agent violated the Customs House Agents Licensing Regulations, 2004, and if so, whether penalty under Section 117 of the Customs Act is the appropriate remedy.

- Whether the Business Development Associate (BDA) of the supplier company can be held liable for penalty under Section 112(a) of the Customs Act, 1962 for diversion of imported High Speed Diesel (HSD) procured under customs duty exemption.

- The extent of liability of intermediaries (CHA and BDA) in cases of diversion of imported goods exempted from customs duty under specific notifications and the evidentiary standard required to impose penalties.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Penalty Imposition on Customs House Agent under Section 117 of the Customs Act, 1962

Relevant legal framework and precedents: Section 117 of the Customs Act provides for penalties for contraventions or failures not specifically penalized elsewhere in the Act, with a maximum penalty of one lakh rupees. The Customs House Agents Licensing Regulations, 2004, regulate the conduct and obligations of CHAs, with specific provisions for suspension or revocation of license under Regulation 20 but do not prescribe monetary penalties under Section 117 for violations of these Regulations.

In the precedent cited (Glory Agencies vs. Commissioner of Customs), it was held that the responsibility of a CHA ceases once goods are handed over to the transporters and that the CHA cannot be expected to have knowledge of the subsequent use or diversion of goods after clearance.

Court's interpretation and reasoning: The Court examined the statutory provisions and found that Section 46 of the Customs Act imposes duties and obligations on the importer for entry of goods and presentation of bills of entry, not on the CHA. The penalty under Section 117 requires a clear violation of a provision of the Customs Act by the person penalized. The Adjudicating Authority failed to specify which provision of the Customs Act the CHA violated.

The Court also noted that violations of the Customs House Agents Licensing Regulations do not attract penalty under Section 117 but may lead to suspension or revocation of license under Regulation 20. Hence, imposing a monetary penalty under Section 117 for alleged violations of these Regulations was held to be improper.

Key evidence and findings: The CHA's counsel argued that the errors in the bills of entry (incorrect importer name and IEC number) were typographical and that all required documents were submitted at the time of clearance. The CHA was not alleged to have colluded with the importer or customs officers, nor was there any evidence of wilful negligence or abetment.

The Department relied on statements indicating the CHA prepared bills of entry with incorrect importer details and failed to obtain affidavits or indemnity bonds as allegedly required. However, the Court found no statutory requirement for such affidavits in the relevant Notification and no evidence that clearance was improperly permitted without appropriate documents.

Application of law to facts: The Court applied the legal framework to the facts and concluded that the CHA did not commit any actionable violation of the Customs Act warranting penalty under Section 117. The alleged typographical errors and procedural lapses did not justify penalty without evidence of willful neglect or abetment.

Treatment of competing arguments: The Department's argument that the CHA failed to prevent leakage of government revenue was rejected on the basis that the CHA's responsibility ends once goods are cleared and handed over. The CHA's lack of control over the subsequent diversion of goods was emphasized.

Conclusions: The penalty imposed on the CHA under Section 117 was arbitrary and unsustainable. The Court set aside the penalty order against the CHA.

Issue 2: Liability of Business Development Associate under Section 112(a) of the Customs Act, 1962

Relevant legal framework and precedents: Section 112(a) of the Customs Act provides for penalties where goods are liable for confiscation under Section 111 due to contravention of customs laws, including diversion of goods imported under exemption notifications. The BDA's role in facilitating sale and distribution of such goods is scrutinized for complicity or abetment.

Court's interpretation and reasoning: The Court found that the BDA was actively involved in promoting sales of imported HSD exempted from customs duty under the PAC scheme. Evidence demonstrated that he arranged registration of buyers, coordinated transportation, and instructed employees and transporters to divert goods to unauthorized sites not covered by the PAC.

The BDA was aware of the customs clearance process and conditions of exemption, and despite this knowledge, facilitated and directed the diversion of goods, thereby violating Section 11 of the Customs Act (prohibition on diversion of imported goods) and abetting contravention.

Key evidence and findings: Statements from the BDA, his employee, transporters, and the importer's director established the BDA's knowledge and active participation in diversion. The BDA insisted on mobile phones for tanker drivers to direct unloading locations, confirming control over diversion. The BDA admitted awareness of diversion to unauthorized sites.

Application of law to facts: The Court applied Section 112(a) to hold the BDA liable for penalty as he aided and abetted the diversion of imported duty-exempt HSD. The evidence sufficiently demonstrated his role in contravention of customs laws.

Treatment of competing arguments: The BDA's counsel argued lack of control over use of goods and absence of direct import or clearance role. The Court rejected this, emphasizing the BDA's active facilitation and control over diversion, making him liable despite not being importer or CHA.

Conclusions: The penalty imposed on the BDA under Section 112(a) was justified and sustainable. The appeal against the penalty was dismissed.

3. SIGNIFICANT HOLDINGS

- "Under Section 46 of the Customs Act, duty has been imposed upon the importer of the goods and not upon the Custom Broker or Customs House Agent, therefore, no penalty can be imposed upon the appellant Mahendra N. Thacker who worked as Custom Broker for the violation of Section 46 by the importer."

- "Where there is no express penalty elsewhere in the Act then penalty may be imposed under Section 117 for contravention of any provisions of this Act. In the impugned order, the Adjudicating Authority has not made it clear that the appellant Mahendra N. Thacker violated which provisions of Customs Act which he was duty bound to follow. Therefore, penalty cannot be imposed upon the appellant arbitrarily without clearly defining the violation of any specific provision of the Customs Act."

- "No penalty can be imposed upon the Customs Broker or CHA for violation of Customs House Agents Licensing Regulations, 2004 and only his licence may be suspended or may be cancelled under Regulation 20."

- "The responsibility of CHA would cease once goods are handed over to the transporters and CHA cannot be expected to have knowledge as to what happened to the goods after handing over to the transporters."

- "Shri Rajiv Sahni played a key role in the diversion of imported HSD cleared under PAC in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted the diversion for 460 KL HSD valued at Rs. 89,13,340/- and having a duty liability of Rs. 23,08,357/-."

- The Court confirmed the penalty of Rs. 2,00,000/- imposed on the BDA under Section 112(a) of the Customs Act and set aside the penalty of Rs. 50,000/- imposed on the CHA under Section 117.