2025 (5) TMI 665 - AT - Customs

Levy of penalty u/s 112 (a) and Section 114 AA of the Customs Act 1962 - alleged abetment of misdeclaration and undervaluation of imported goods - no reason/evidence given for imposition of penalty. Levy of penalty u/s 112 (a) - HELD THAT - Section 112(a) of the Customs Act includes two categories of persons who may be liable for fine. The first category of persons are those who in relation to any goods do or omit to do any act which renders the goods liable for confiscation under Section 111 of the Customs Act. The second category of persons comprises of those who abet the doing or omission of such acts. In the present case penalty has been imposed on the appellant on the allegation that he had abetted the act of misdeclaration of the imported goods. However it is noted that the appellant had been regularly filing the Bills of Entry for the importer viz. M/s Jagadamba Enterprises and the goods had been cleared by the department. In the context of Section 112(a) of the Customs Act by definition the expression abet means instigating conspiring intentionally aiding the acts of commission or omission that render the goods liable for confiscation. It is thus apparent that the knowledge of a wrongful act of omission or commission which rendered the goods liable for confiscation under Section 111 of the Customs Act is a necessary element for the offence of abetting the doing of such an act. In Amrit Lakshmi Machine Works vs. The Commissioner of Customs (Import) Mumbai 2016 (2) TMI 57 - BOMBAY HIGH COURT a Full Bench of the Bombay High Court had considered the aforesaid issue and held that the word abetment is required to be assigned the same meaning as under Section 3(1) of the General Clauses Act 1897 - In the instant case it is seen that the appellant had simply facilitated the customs transaction on behalf of the importer/exporter and no evidence has been led by Revenue to establish that the he was directly involved in any wrongdoing in respect of the impugned consignment. Consequently the penalty under Section 112(a) cannot be upheld. Levy of penalty u/s 114 AA of the Customs Act 1962 - HELD THAT - The appellant was in possession of the required KYC documents as mandated by the provisions of the law. The said KYC documents have not found to be fake or forged. It is an admitted fact that the appellant had in the past filed customs clearance documents for the said importer which had been cleared by the authorities. Revenue has not been able to clearly establish either active or passive role or any deliberate or mala fide act on part of the appellant. The allegations that the appellant did not physically verify the premises of the importer are not sufficient to fasten the appellant with the penalty. It has not been established that the appellant handled this consignment with any malafide motive. It is essential to establish an intentional or deliberate act or omission and to the act of abetment for imposition of penalty under Section 114AA of the Customs Act. Conclusion - Where a Customs Broker has complied with the due diligence requirements and obtained proper authorization and KYC documents penalties under Sections 112(a) and 114AA cannot be imposed merely on the basis of acts of third parties or misuse of IEC by others. The impugned order and the penalties imposed on the appellant set aside - appeal allowed.

Summary

The core legal questions considered by the Tribunal in this appeal are:

1. Whether penalty under Section 112(a) of the Customs Act, 1962 can be imposed on the Customs Broker appellant for alleged abetment of misdeclaration and undervaluation of imported goods.

2. Whether penalty under Section 114AA of the Customs Act, 1962 for use of false or incorrect material can be imposed on the Customs Broker appellant in the absence of evidence of collusion or wilful misstatement.

3. Whether the Customs Broker appellant complied with the due diligence and authorization requirements under the Customs Broker Licensing Regulations, 2013 (CBLR 2013) and related KYC norms.

4. The scope and interpretation of "abetment" under Section 112(a) in the context of Customs violations and the necessary mens rea for imposition of penalty.

5. The applicability of precedent case law regarding the obligations of Customs Brokers to physically verify clients and the liability of Customs Brokers for acts committed by clients or third parties using their IEC.

Issue-wise Detailed Analysis:

1. Imposition of penalty under Section 112(a) of the Customs Act, 1962:

The relevant legal framework includes Section 112(a), which penalizes any person who either commits an act or omission rendering goods liable to confiscation under Section 111 or abets such act or omission. The Tribunal emphasized that Section 112(a) covers two categories: direct perpetrators and abettors. The term "abet" is interpreted with reference to Section 107 of the Penal Code and the General Clauses Act, requiring intentional aiding or facilitation with knowledge of the wrongful act.

The Court relied on the Supreme Court ruling in Shree Ram v. State of U.P., which clarified that mere facilitation without intent or knowledge does not constitute abetment. The Bombay High Court's Full Bench decision in Amrit Lakshmi Machine Works further reinforced that "mere facilitation without knowledge would not amount to abetting an offence."

In the present facts, the appellant had regularly filed Bills of Entry for the importer, which were accepted by Customs without objection. There was no evidence that the appellant had knowledge of misdeclaration or undervaluation or that he intentionally abetted such acts. The appellant had obtained the necessary KYC documents and authorization letters, which were not found to be forged or false. The importer's proprietor disowned ownership of the goods, alleging misuse of his IEC by a third party, but no direct link was established implicating the appellant in wrongdoing.

The Tribunal found that the penalty under Section 112(a) could not be sustained because the essential element of mens rea-knowledge or intent to abet-was not established against the appellant. The appellant's role was limited to facilitating customs clearance based on documents provided by the importer or third party, without evidence of active complicity in the misdeclaration.

2. Imposition of penalty under Section 114AA of the Customs Act, 1962:

Section 114AA penalizes knowingly or intentionally making, signing, or using false or incorrect declarations or documents in customs transactions. The penalty can be up to five times the value of the goods. The Tribunal noted that this provision requires proof of deliberate or wilful misstatement or suppression of facts.

In the instant case, the appellant possessed valid KYC documents which were not found to be false or forged. The appellant had cleared multiple consignments for the importer previously without incident. There was no evidence of collusion, malafide intent, or deliberate falsification by the appellant. The appellant's failure to physically verify the importer's premises or identity was not sufficient to impose penalty under Section 114AA, as physical verification is not mandated by CBLR 2013 or KYC circulars, and previous judicial precedents held that Customs Brokers are not obliged to undertake physical verification of clients.

The Tribunal also referred to the fact that the appellant's Customs Broker license revocation order based on alleged violations of Regulations 11(a), 11(d), and 11(e) of CBLR 2013 was set aside by the Tribunal in a separate proceeding. The Tribunal held that the appellant had complied with the requirement to obtain authorization and KYC documents and had no conscious lapse or malafide conduct. Hence, penalty under Section 114AA was not justified.

3. Compliance with Customs Broker Licensing Regulations and KYC norms:

The appellant held a valid Customs House Agent (CHA) license and had obtained IEC copies, authorization letters, and identity proofs from the importer or their representative. The Tribunal examined the relevant provisions of CBLR 2013, particularly Regulation 11(a) requiring authorization from clients and Regulations 11(d) and 11(e) requiring Customs Brokers to advise clients on compliance and exercise due diligence.

The Tribunal found that the appellant had complied with these requirements by obtaining proper authorization and KYC documents and had produced these during investigation. The appellant had cleared multiple consignments for the importer without objection, indicating ongoing compliance. The Tribunal relied on precedent decisions from the Tribunal and High Courts which held that physical verification of clients is not mandatory for Customs Brokers and that mere failure to physically verify does not constitute violation.

The appellant's argument that the importer's IEC was misused by a third party was accepted as plausible, and the appellant was not held liable for acts of the importer or third parties beyond his knowledge or control. The Tribunal emphasized that imposing penalty on a Customs Broker without evidence of knowledge or intent to abet would be unjust and contrary to established legal principles.

4. Interpretation of "abetment" and mens rea requirement:

The Tribunal extensively analyzed the concept of abetment under Section 112(a) with reference to Section 107 of the Penal Code and relevant judicial precedents. It underscored that abetment requires intentional aiding or facilitation of the wrongful act with knowledge, not mere facilitation or passive involvement.

The Tribunal rejected the Revenue's contention that the appellant's mere involvement in filing Bills of Entry amounted to abetment. It held that without proof of knowledge or intent, penalty under Section 112(a) cannot be imposed. This principle protects innocent facilitators from disproportionate penalties and ensures that only culpable persons are penalized.

5. Precedent case law on Customs Broker obligations and liability:

The Tribunal relied on several decisions to support its conclusions:

• The Tribunal's own decisions in M/s Setwin Shipping Agency and M/s Him Logistics Pvt. Ltd. held that Customs Brokers are not required to physically verify clients.
• The Delhi High Court in Commissioner of Customs v. Yogesh Kumar reiterated that physical verification is not mandatory for Customs Brokers.
• The Bombay High Court in Hamid Fahim Ansari held that use of an IEC by another person does not constitute an offence if customs duty is paid.
• The Kerala High Court in Proprietor, Carmel Exports & Imports held that being a "name lender" importer is not an offence under Customs Act.
• The Gujarat High Court in Commissioner of Customs v. VAZ Forwarding Ltd. held that penalty cannot be imposed on Customs Broker without evidence of knowledge of wrongdoing.
• The Tribunal in R.P. Sethi v. Commissioner of Customs held that penalties under Section 112 cannot be imposed for violations of CHA licensing regulations; separate proceedings are required for such breaches.
• The Supreme Court decision in K.I. Pavunny v. Assistant Collector emphasized the importance of due diligence by Customs Brokers and their liability for acts of authorized representatives.
• The Tribunal in Skytrain Services v. Commissioner of Customs held that Customs Brokers are liable for violations committed by their authorized representatives if due diligence is not exercised.

These precedents collectively establish that Customs Brokers have a duty to exercise due diligence and obtain proper authorization and KYC documents but are not required to physically verify clients. Penalties under Section 112(a) and 114AA require proof of knowledge, intent, or wilful misconduct.

Conclusions:

The Tribunal concluded that the penalty imposed under Section 112(a) could not be sustained as the appellant did not abet the misdeclaration or undervaluation with knowledge or intent. The appellant's role was limited to facilitation based on documents provided by the importer or their representative.

Similarly, the penalty under Section 114AA was not justified as there was no evidence of the appellant knowingly or intentionally using false or incorrect documents. The appellant had complied with the KYC and authorization requirements and had no conscious or deliberate lapse.

The Tribunal also found that the appellant had complied with the Customs Broker Licensing Regulations and that physical verification of clients is not mandatory. The appellant was not liable for misuse of the importer's IEC by third parties beyond his knowledge.

Accordingly, the impugned order imposing penalties under Sections 112(a) and 114AA was set aside, and the appeal was allowed.

Significant Holdings:

"Section 112(a) of the Customs Act includes two categories of persons liable for penalty: those who commit acts rendering goods liable to confiscation and those who abet such acts. The essential element for abetment is knowledge or intent to aid the wrongful act. Mere facilitation without knowledge does not constitute abetment."

"Penalty under Section 114AA requires proof of knowing or intentional use of false or incorrect documents. Absence of collusion or wilful misstatement precludes imposition of penalty."

"Customs Brokers are required to obtain authorization and KYC documents but are not mandated to physically verify the premises or identity of clients. Failure to physically verify does not attract penalty under the Customs Act or Customs Broker Licensing Regulations."

"Imposing penalty on a Customs Broker without evidence of mens rea or conscious involvement in wrongdoing is unsustainable in law."

"Where a Customs Broker has complied with the due diligence requirements and obtained proper authorization and KYC documents, penalties under Sections 112(a) and 114AA cannot be imposed merely on the basis of acts of third parties or misuse of IEC by others."