2016 (5) TMI 173

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..... ty under the provisions of Section 112(a) of the Customs Act, 1962 on the ground that they had connived and colluded with one Shri Sujit Satam for smuggling of restricted items i.e. foreign branded cigarettes and liquor. 3. Learned Counsel appearing on behalf of both the appellants would take us through the case records and submit that the activity of the appellants at the most falls under the category of lending of their IEC Code to Shri Sujit Satam. She would submit that the adjudicating authority has clearly recorded that Shri Sujit Satam was the main brain behind the imports of cigarettes and liquor under the guise of computer casing and had financed the entire payment of duty. She would submit that mere lending of IEC Code is not an o .....

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..... i Kishore Shah also had helped Shri Sujit Satam for arranging banker's cheque or demand draft for the payment of duty on the mis-declared goods i.e. computer casing, in the name of one of the employees. These facts indicate that Shri Kishore Shah was aware of nefarious activity of Shri Sujit Satam as otherwise he would have issued demand draft of the firm M/s Darshana Impex. Since the consignment which is confiscated by the adjudicating authority is of M/s Darshana Impex and Shri Kishore Shah handling day-to-day activity of said firm he is liable for penalty under Section 112(a) of the Customs Act, 1962. In our considered view the findings recorded by the adjudicating authority clearly brings out the knowledge on the part of Shri Kishore Sh .....

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..... e, we find that the case laws are easily distinguishable on the facts. In all the three case laws which were cited by the learned Counsel, we find that the goods which were imported were freely importable and none of them are prohibited or restricted and declarations were made in the bills of entries submitted to the authorities; while in the case in hand it is clearly established that there was an intention to smuggle cigarettes and liquor in the guise of computer casing. Hence the ratio as proposed by the learned Counsel is not applicable in the case in hand. 7. In sum, we allow the appeal of Shri Pravin Gada and set aside the penalty imposed on him and reject the appeal filed by Shri Kishore Shah and uphold the penalty imposed on him. .....

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