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2019 (5) TMI 928

s section deals with the cases of confiscatory goods where abetment goes to the root of the matter. It stipulates that a person shall be liable to penalty, 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. The said section provides for imposition of penalty on any person who abets the doing or omission, of any act or omission, which will render the goods liable to confiscation - Cogent, tangible and reliable evidence is required for such penal actions. There is no evidence to establish that the appellant was aware that the clearance work undertaken by them at the instance of the said Mukhtar Sheikh, .....

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JNCH, Nhava Sheva, Mumbai-II in Order-in-Appeal No. 231[Adjn(I)]/2018(JNCH)/ Appeal-II by which the Commissioner (Appeals) disposed of the Appeal filed by the Appellant and reduced the penalty under Section 112(a) of the Customs Act, 1962 to ₹ 5 lacs. The issue for determination is whether the Appellant, who is a CHA, is liable for penalty under Section 112(a) ibid. 2. The facts of the Appeal in brief are as follows. The Appellant is the partner of M/s. P N Shipping -CHA. One Mukhtar Shaikh of M/s. Fast Forward Logistics Solutions approached them and started giving them business of import & export clearance. In past also during the period December, 2014 to April, 2015 the said Mukhtar Shaikh gave work to the appellants regarding 6 .....

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entire clearance process of the consignment. On the same day at about 16.30 hrs the Appellant was informed by DRI that the consignment contained offending goods and needed to be examined. Upon examination it was found that apart from the declared goods, the said consignment contains 20445 boxes of cigarettes valued at ₹ 3.36 crores. The said consignment was seized under panchnama dated 7.5.2015. After investigation, a show cause notice dated 29.10.2015 was issued by DRI to 7 known persons including the Appellant viz., Omkar Rajender Kumar Keer, Kanaiya Hurbada, Rajan Hemraj Bhanushali, Dinesh Bhanushali, Mukhtar Shaikh, Jaideep Ramniklal Shah, Suresh Bhanushali and other unknown persons in connection with seizure of Omega Trolley Bags .....

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aikh and Kanaiya Hurbada, who were not authorised to handle the customs post filling Bill of Entry work, to handle & examination part of the custom broker s job on his behalf, which has resulted in fraudulent attempt to clear the contraband goods. According to him, alongwith the copy of invoice, packing list and Bill of Lading the said Mukhtar Shaikh also sent copy of the documents mandated for KYC verification namely IEC, PAN card, Aadhar Card, Signature verification from the concerned bank, ITRs alongwith P&L A/c statement and ST-1 form and after due verification of these documents through site of DGFT, entered the particulars in the job register on 7.5.2015. On the other hand, the learned Authorised Representative for the Revenue .....

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bags was not within the knowledge of the Appellant and this establishes that the CHA was not aware about the violations beforehand. No evidence has been brought out about the prior knowledge of the appellant regarding violation of the provisions of Customs Act. As per evidence brought on record, it is not a case that the appellant had wrong intent. It is also not a case that the appellant worked as an accomplice. It is settled principle that lack of due diligence and failure to take more precautions cannot, by itself bring in penal consequences under Section 112(a). For imposition of penalty under Section 112(a), a positive act or omission is to be established. For imposition of penalty malafide act/omission is one of the requirements. Adm .....

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