TMI Blog2013 (10) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... n endoscopic system. They were fully aware that the system would only qualify for an exemption in case it was declared in a particular manner and words. They acted being fully aware of all the facts and it was a conscious and well informed decision. The actus reus was present and was motivated by a common goal and with a common purpose. All of them were aware as to why the system was being declared as an endoscopic system and the role played by each one was more or less similar and as culpable. It cannot be said that the Secretary played any lesser role than the appellant M/s. J. Mitra & Bros. Even if the appellant M/s. J. Mitra & Bros. had suggested misdeclaration of the equipment to save duty, the Secretary and the Chairman could have easily declined. The fact that the Secretary and the Chairman of M/s. CARE accepted the suggestion of the appellant M/s. J. Mitra & Bros. makes their role equal. The appellant is being punished as an abettor. The gravity of the role of the abettor and a well informed principal offender cannot be different. Where the degree of offence is same the scale of punishment should also be equal. Applying principle of parity of consequence, as all are ascr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Nasal Pharyngo Bronchoscope, Fibreoptic Flexible Laryngo Brochoscope, Video Laryngo Brochoscope and Video Oesophago Gastroscope, Stroboscope, Fibreoptic Flexible Oesophago Gastroscope. 5. Alongwith the Bill of Entry, M/s. CARE had submitted a commercial invoice dated 04.09.2003 of M/s. Intuitive Surgical Inc. for IS 1200 Da Vinci Surgical System , amongst others a copy of brochure published by M/s. J. Mitra Bros. for the said system in which description of the said system was mentioned as Endoscopic Coronary Artery Bypass System was filed. 6. M/s. CARE declared the assessable value of the said equipment at Rs.5,80,75,000/- and paid duty of Rs.29,03,750/- at the concessional rate of 5%. Since the goods, prima facie, appeared to be misdeclared, the system imported was seized by the officers of SIIB, Hyderabad. M/s. CARE voluntarily paid an amount of Rs.2,05,58,550/- in installments in addition to the amount of Rs.29,03,750 paid initially for clearance of the surgical system towards full amount of Customs duty of Rs.2,34,62,300/- payable on the said surgical system at rate of 40.40%. On payment of the said duty, the surgical equipment was provisionally released to M/s. CAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . J. Mitra Bros. who had published the brochure of the said goods in such a manner that M/s. CARE could declare the product as an endoscope. 10. The Commissioner of Customs noted the submission of a partner of the appellant M/s. J. Mitra Bros. that the brochure printed by them was for distribution among the delegates of ISMICS (International Society for Minimally Invasive Cardiac Surgery) but found that the said brochure was also submitted to M/s. CARE and formed the basis of the declaration in the Bill of Entry. 11. The Commissioner of Customs imposed a penalty of Rs.2,34,62,300/- on M/s. CARE under Section 114 of the Act. However, no penalty under Section 112 was imposed on M/s. CARE. A penalty of Rs.5,00,000/- each was imposed on the Secretary and Chairman of M/s. CARE Foundation under Section 112(a) of the Act for their active role in misdeclaration. No penalty was imposed on the Bio Medical Engineer. Penalty of Rs.25,00,000/- was imposed on the appellant M/s. J. Mitra Bros. for their active role in misdeclaraton of the description of the goods under Section 112(a) of the Act. 12. The appellant M/s. J. Mitra Bros. filed the appeal before the CESTAT impugning the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his was done deliberately to claim exemption that was otherwise not available. This is not a case of a belief that the appellant may have entertained but a deliberate and conscious effort to wrongly claim exemption. The said judgment is not applicable. 16. The only issue that arises then for consideration is as to what role can be ascribed to the appellant M/s. J. Mitra Bros. in terms of the declaration/misdeclaration of the goods so as to return a finding whether the appellant M/s. J. Mitra Bros. has abetted the misdeclaration and was liable to penalty under Section 112(a) of the Customs Act and the quantum of penalty. 17. Section 112 of the Customs Act lays down as under:- 112. Penalty for improper importation of goods, etc. - Any person,- (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, con-cealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or customs clearance to avail concessional rate of duty. He also stated that the description Endoscopic System added in bracket to Da Vinci Surgical System in the bill of entry was as per the suggestion of the appellant M/s. J. Mitra Bros. and it was the appellant M/s. J. Mitra Bros, who had mentioned that the two said systems under similar classification had already been imported by them. The statement of Sh. C. Krishna Kumar, Bio Medical Engineer, M/s. CARE Hospital was also recorded, who categorically stated that the appellant had given the details to be furnished to the Customs and had guided them about the technical write-up to be submitted to the Customs and the classification to avail concessional rate of 5% Customs duty. 21. Factual findings categorically returned is that the appellant M/s. J. Mitra Bros. has played a significant role and an active participant in misdeclaratoin of the imported goods and they had submitted to M/s. CARE a published brochure describing the equipment as an endoscope in contrast to the literature and documents of the manufacturers which described the system as Da Vinci Surgical System. It has been held that it was the appellant who had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed under Section 114A on M/s. CARE Foundation, the importer. The Tribunal, accordingly, quashed the penalty imposed under Section 114A. However, as no penalty under Section 112 was imposed on M/s. CARE Foundation by the adjudicating authority, the Tribunal also did not impose any such penalty. 26. As regards to the penalty imposed on the Secretary of M/s. CARE Foundation, CESTAT reduced the same to Rs.2.5 lakhs on the ground that the Secretary had not misdeclared the goods for any personal gain. As regards to the appellant M/s. J. Mitra Bros., no relief from the penalty imposed was granted. We may only note that the Tribunal has not referred to the penalty imposed on the Chairman of M/s. CARE probably because the Chairman was not in appeal before the CESTAT. 27. We are of the considered view that the quantum of penalty imposed on the appellant M/s. J. Mitra Bros. is not justified and is disproportionate. No doubt that the appellant M/s. J. Mitra Bros. has abetted the offence of misdeclaration and is liable to pay penalty under Section 112(a). The statements recorded of the Secretary and the Chairman during the investigation clearly show that the Secretary and Chairma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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