TMI Blog2015 (4) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... uspicion in every case that the employer is aware of the misdeed in the absence of evidence to the contrary. We are therefore not convinced that the appellant is guilty of violating Regulation 11(a). Similarly, the finding that Regulation 17(9) is violated is not established because the employee has acted on his own accord and has not acted in the transaction of business of his employer. The Tribunal held in the case of K.S. Sawant & Co. v. Commissioner of Customs [2013 (12) TMI 119 - CESTAT, MUMBAI] that procurement of business through an intermediary does not amount to sub-letting of business in every case. In the present case the facts are even more diluted and the appellant has neither filed the Bill of Entry nor allowed his license ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods. The goods were imported and cleared by M/s. Team 24 Marketing Pvt. Ltd. without a proper FSSAI NOC which is required under the Food Safety and Standards Act, 2006. Mr. Pravin Jha had gained access to the Customs area only because of the Customs pass given to him as an employee of the appellant Shri Rahul Habbu, Director of appellant stated that the appellant had not filed the said Bill of entry and Shri Rahul Habbu expressed ignorance about Mr. Pravin Jha taking delivery of goods imported vide above said Bill of Entry. The Commissioner of Customs (Export) Air Cargo Complex, Mumbai, on the basis of preliminary investigations came to the conclusion that the appellant had violated Regulation 11(a) (not obtaining authorization from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is disproportionate to the violation alleged merely on misconstrued interpretation of vicarious liability. He relied on Ashiana Cargo Services v. Commissioner of Customs - 2014 (302) E.L.T. 161 (Del.). 5. The ld. AR appearing for the Revenue reiterated the findings of the Commissioner. He emphasized that Mr. Pravin Jha had used the Customs pass issued to him as an employee of the appellant to take the illegal delivery of the goods in a fraudulent manner. He further stated that Mr. Pravin Jha took delivery of the goods knowing fully well that the appellant were not authorized by the importer and they had not filed the Bill of Entry relating to the imported goods. 6. We have carefully considered the submissions of both sides. 7. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in helping another importer in an illegal activity cannot be considered as an act by him under the shadow of his employment with the appellant. It is a far fetched and rather unreasonable contention that the appellant must pay the price for deeds committed by his employee in his private capacity. Only because a person misuses an Identity Card (Customs Pass in this case) issued by his employer which entitled him to access the Customs area, cannot and does not lead to a belief or suspicion in every case that the employer is aware of the misdeed in the absence of evidence to the contrary. We are therefore not convinced that the appellant is guilty of violating Regulation 11(a). Similarly, the finding that Regulation 17(9) is violated is not e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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