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2017 (9) TMI 1134 - AT - CustomsInterpretation of statute - importer - who is the importer of the impugned goods? - Held that: - in the statements given before the authorities Shri Prashun Jain has never admitted to his importing these goods. The admission is regarding arranging for parties who will provide financial assistance and procurement of imported goods. It indicates his involvement with the import consignment as facilitator, not as importer. In fact, it was mentioned that he and Shri Biplav Kumar has arrangement between them to the effect that Shri Prashun Jain will arrange for parties who will provide finance and procurement of imported goods and Shri Biplav Kumar will arrange for clearance of goods. In the second statement, the appellant stated that the goods were imported by Shri Prashant Gupta, the appellant is suppose to help the importer in clearing the goods through customs - the appellant can be considered as importer of the impugned goods. Seizure of consignment - Held that: - the proceedings with reference to past clearance are in further weaker ground. The contents of the past clearance, their identity and who processed the import on whose behalf could not be established. Even on the principle of preponderance of probability as invoked by the Original Authority, the present case falls much short of required proof. The selective reliance of part of the retracted statements alone cannot be the basis for sustaining the duty demand against the appellant. On careful consideration of the evidences available on record, we hold that Shri Prashun Jain cannot be held as importer in the present case. Penalty u/s 114 AA, under Section 28 and 112 of the Act - Held that: - if a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this act shall be liable to a penalty not exceeding five times, the value of goods. We note that the said provisions are wide enough to cover the acts of the appellant as brought out during the investigation. Considering that the evidences of such involvement in the past clearances are not available to a sustainable level and involvement in the present consignment has been established based on available evidence, we find that a penalty of ₹ 5 lakhs under Section 114AA will meet the ends of justice. Other than this penalty, we find that the appellant cannot be put to any liability for duty or penalty, under Section 28 and 112 of the Act. Penalty imposed on M/s Om Freight Forwarders P. Ltd. - Held that: - the person from whom the goods were seized has to establish the bonafideness with valid document. Further, we also note that the reliance placed by the Original Authority on the Tribunal decision dealing with unclaimed consignment has no application to the facts of this case to decide the penalty on the forwarding agent. Even if it is admitted that the delivery order was issued without verifying the antecedent of the person, this will not amount to abetting an act or omission of such act, which requires prior knowledge of possible breach of legal provision, by the main offender. The Original Authority stated that by issuing delivery order without proper verification, the appellants have abetted the unlawful import of impugned consignments in connivance with Shri Prashun Jain. This assertion is not supported by any evidence. The charge of abetting can be established only when there is an prior knowledge on the part of abettor regarding possible offence by the main offender. The omission on the part of M/s CMC is not liable to penalty as an abettor as they had no knowledge of the offence as well as they had no intention to defraud the exchequer by indulging in the offence of smuggling. The charge against M/s CMC was that they have enabled filing of bill of entry without verifying the authorized person’s status. On a similar situation, the Original Authority arrived at a different conclusion in respect of the freight forwarders. Here also the charge of negligence cannot lead to an offence as abettor. The reasons adopted by the Original Authority for M/s CMC are equally applicable to the present appellant also. The appeal filed by Shri Prashun Jain is partly allowed and the appeal filed by M/s Om Freight Forwarders P. Ltd. is allowed - decided partly in favor of appellant.
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