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TMI Blog2017 (9) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... 008. Based on certain specific information regarding possible violation of provisions of Customs Act, 1962 in the import of the said consignment, the officers intercepted the consignment and conducted further follow up enquiry. Shri Prashun Jain, had gate pass for the consignment and was present in the clearance gate for clearing the said goods. M/s Prashun Jain is the proprietor of Custom House Agent, M/s Prashun Jain and has "F Card" issued by the Customs Authority. During the course of enquiry, he informed that the import consignment was Micro SD Memory Card of 2 GB capacity. The goods were examined and found contained Micro SD Card of 2GB and RAM of 1 GB. The goods were seized and further investigation conducted. On completion of the investigation show cause notice dated 17/11/2011 was issued to various persons for confiscation of seized goods, to re-determine of value including for past clearances, demand of differential duty including past clearances, imposition of penalties under Section 112 and 114AA, 117 for various offences alleged therein. 2. The case was adjudicated resulting in the impugned order. The Commissioner ordered confiscation of goods covered under the bill o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty demand on the past imports are not at all sustainable. There is no evidence about the involvement of appellant as the importer of goods. No evidence was given in the notice regarding the contends of past clearances and the connection of the appellant to such clearances. Without prejudice to the above contention, the duty calculation is made arbitrarily on prorata basis without any enquiry regarding the quantity of goods imported under the past bills of entry. No enquiry or investigation was conducted with reference to the said two bills of entry ; (e) no penalty under Section 114AA or Section 112 of the Customs Act, 1962 is imposable on the appellant as these provisions are not attracted in the case against the appellant. 4. The learned Counsel appearing on behalf of M/s Om Freight Forwarders P. Ltd. submitted that the appellants are engaged in the business of freight forwarding. On 16/11/2010 in respect of import consignment in the name of M/s Rajdhani Crafts, one Shri Sunil Kumar came to the premises of the appellant representing the importer and collected the delivery order. As Shri Sunil Kumar brought an authorization with a letter head of M/s Rajdhani Crafts, they col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding himself out to be the importer. In the present case, the impugned order held Shri Prashun Jain as the importer. In consequence of such finding, the duty demand and the penalties were confirmed against him. The appellant denied that he is the importer of the goods. On careful perusal of the impugned order, we note that there are serious infirmities and inconsistencies in the said order in certain crucial aspects. The confessional statements of Shri Prashun Jain which formed the main basis of the case (alongwith his possession of gate pass for clearing the cargo), did not bring out that the ownership of the goods is with the appellant. In fact, 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment under seizure is as above, 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, we find that 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. 9. However, the available evidence including the statement of the transporter and presence of gate pass with the appellant, his prior knowledge of contents, alongwith other evidences gathered, shall indicate that the appellant is not totally blemishless. Considering that the appellant is a 'F' card holder, he is aware of the provisions of the customs law. He had acted in a manner in the present case that will attract penal provisions of Section 114AA. The said section stipulates that if a person knowingly or intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. 11. We also note that the Original Authority dealing with the liability of M/s CMC held that although there is negligence on the part of CMC staff no element of mens-rea appears to exist. Its also recorded that there is no evidence to support that M/s CMC benefitted from such contravention. It was accordingly concluded that 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 agains ..... 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