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TMI Blog2019 (12) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... or amendment of the Bill-of-Entry by adding the second invoice was filed to include Chlorodifluoromethane (R-22 Gas); that the appellant did not present the imported goods for examination; that the appellant was liable for penalty under Section 112 (a) ibid for abetting smuggling of R-22 gas by the importer and on the appellant's failure to ensure compliance with Regulations 11(d) and 11 (n) of the Customs Broker Licensing Regulations, 2013 ('CBLR' for short); that the Revenue has not brought on record anything as to the prior knowledge to prove the act of abetment/collusion for import of R-22 gas, etc. 2.2 Ld. Advocate further submitted that the first Bill-of-Entry was filed on 06.04.2016 and request for amending the Bill-of-Entry was made vide letter dated 21.04.2016; that in response to one of the summons issued, the Proprietor of the importer namely, Shri. Praveen Kumar accompanied by one Shri. Kundan Kumar appeared before the SIIB authorities, who were let off by the investigating officers without even recording their statements. Ld. Advocate would also submit that the Revenue authorities extended the period of six months under Section 110 (2) of the Customs Act, 1962 for fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods." 6.2 A conjoint reading of both the above provisions makes it clear that there should be an intentional or deliberate act or omission and even the motive is attributable to the act of abetment to do any act or omit to do any act. Hence, the requirement of mens rea becomes sine qua non for imposing penalty on the Customs Broker. Admittedly, the appellant being the Customs Broker has been fastened with the penalties on the ground that its activities amounted to abetment. Also 'abet' or 'abetment' is not defined in the Customs Act. 7.1 In the Order-in-Original, the Adjudicating Authority has inter alia confirmed the allegations with regard to non-presentation of the imported goods for examination and that the appellant had not informed the Customs Authorities about the non-possessing of licence by the importer for importing the R-22 gas while processing the amended Bill-of-Entry. It is also a fact borne on record contrary to the above findings that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to investigate and enquire into the veracity of the statement made orally or in a document. If one interprets Regulation 13(o) reasonably in the light of what the CHA is expected to do, in the normal course, the duty cast is merely to satisfy itself as to whether the importer or exporter in fact is reflected in the list of the authorized exporters or importers and possesses the Importer Exporter Code (IEC) Number. As to whether in reality, such exporters in the given case exist or have shifted or are irregular in their dealings in any manner (in relation to the particular transaction of export), can hardly be the subject matter of "due diligence" expected of such agent unless there are any factors which ought to have alerted it to make further inquiry. There is nothing in the Regulations nor in the Customs Act which can cast such a higher responsibility as are sought to be urged by the Revenue. In other words, in the absence of any indication that the CHA concerned was complicit in the facts of a particular case, it cannot ordinarily be held liable. 8. As far as the decision in H.B. Cargo Services (supra) is concerned, the facts reflected in paras 5 and 9 facially show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Revenue to establish that the appellant had knowledge or reason to believe that the goods in respect of which it had undertaken customs clearances processes were liable for confiscation, to justify impugned penalties under the Customs Act. This view has also been reiterated by most of the Co-ordinate Benches of the Tribunal like: (i) Buhariwala Logistics Vs. Commr. of Cus., New Delhi - 2015 (326) E.L.T. 170 (Tri. - Del.); (ii) Deepak Kumar Vs. Commr. of ICD, New Delhi - 2017 (358) E.L.T. 854 (Tri. - Del.); (iii) Prime Forwarders Vs. Commr. of Cus., Kandla - 2008 (222) E.L.T. 137 (Tri. - Ahmd.); (iv) Parekh & Sons Vs. Commr. of Cus. (P), Mumbai - 2002 (150) E.L.T. 1274 (Tri. - Mum.). to name a few. 8.1 Further, from a bare reading of Section 114AA it is evident that the said Section could be invoked only on the establishment of the fact that the declaration, statement or document made/submitted in transaction of any business for the purposes of the act is false or incorrect and therefore, without establishing that such declaration, statement or document was false or incorrect in any material particular, this Section cannot be invoked. 8.2.1 In this regard, it is us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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