TMI Blog2019 (12) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... on in respect of export goods - HELD THAT:- The proceedings do not establish that the appellant had any knowledge that the documents were having mis-declaration with reference to the actual contents of the consignment to be exported. The reading of the said provisions of act indicate that the person liable to penalty must have knowledge or reason to believe that the goods in which he is dealing are liable to confiscation. Even if it is accepted for the sake of argument that appellant has authorised Shri Ajit Singh to Sign documents on their behalf, still revenue has not established that the appellant had knowledge that the goods which were being presented for export were liable for confiscation and they were different than the goods described in Shipping Bills - Revenue did not find anything irregular, had the goods described were exported. Therefore, appellant was not liable for imposition of penalty under Section 114 of the Customs Act, 1962. Penalty u/s 117 of CA - omission or commission for which no penalty is provided for - HELD THAT:- The findings as reproduced in the earlier paragraph does not indicate as to which omission or commission on behalf of the appellant has ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found that 13 packets were pertaining to export consignment and two packets were pertaining to import consignment. Out of 13 packets made for export, 4 packets were pertaining to Shipping Bill No.SB/NSEZ/020001430 dated 04.02.2009 which were covered by invoice no.GSE/AE/NSEZ/EXP/109/2008-09 dated 04.02.2009. All the shipping bills along with invoices were issued by M/s Ajit Exports showing third party export of 0.75 and 0.92 fine gold jewellery in the account of M/s Goldstone Exports Ltd., New Delhi, (present appellant, who was earlier known as M/s Goldstone Exports Ltd.) to M/s Samarah Gold Factory, Sharjah and M/s Mahesh Company Pvt. Ltd., Singapore. The said consignments were examined by Jewellery Export appraiser. He reported that the said 4 packets found to contain brass circles and brass scrap/cuttings in rectangular form whereas it has been declared as 0.750 fine gold jewellery in the concern shipping bill. The said brass, circles and scrap were duly sealed with the seal of M/s Ajit Exports and was ready for export and the same was declared as 0.750 fine gold. The said goods were seized. Investigations were conducted at the end of the appellant. Statement of authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to be a clear afterthought devised cleverly to escape liability. The fact that in their MOU/s Goldstone Export Ltd, had indicated that they had confirmed export orders and that a written authorization was given by them on the strength of which actual exports, were shown to have been made, clearly establishes the complicity of M/s Goldstone Exports Ltd, in the fraudulent export of gold jewellery, which is also corroborated by the transaction of huge amount between M/s Goldstone Export Ltd, and M/s MBS Impex Pvt. Ltd., discussed in paras above. M/s Goldstone Export Ltd, is therefore liable for penal action under Section 112, 114 117 of the Customs Act, 1962. Accordingly, the Original Adjudicating Authority has imposed two penalties of ₹ 5 crores each on the appellant under Sections 112 114 of the Customs Act, 1962. The Original Adjudicating Authority further imposed a penalty of ₹ 95,000/- on the appellant under Section 117 of Customs Act, 1962. Further, the Original Authority has confiscated brass circles and scrap which was seized. Aggrieved by the said order appellant is before this Tribunal. 3. Heard Shri Jitin Singhal le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised M/s Ajit Exports to involve into any illegal activities on behalf of the appellant. Therefore, the appellant cannot be held responsible for any act of omission or commission by Shri Ajit Singh or M/s Ajit Exports. g) The two shipping bill invoices were issued in the name of M/s Samrah Gold Factory, Sharjah. During the course of investigations statement dated 28.10.2010 was recorded of Shri Kishore Ratilal Dhakan, Director of M/s Samrah Gold Factory under Section 108 of Customs Act, 1962 wherein he had categorically admitted that he never had business dealing with the appellant and he had neither placed any order to the appellant directly or indirectly nor have had made any payment to the appellant for the gold jewellery. h) Transactions between the appellant and M/s MBS Impex were related to land transactions as the appellant is into the business of real estate. In fact the said transactions were clearly explained by Shri Sukesh Gupta, Director of M/s MBS Impex Pvt. Ltd. in his statement dated 08.11.2011 and 13.12.2011 recorded under Section 108 of Customs Act, 1962. i) Penalty under Section 112 of Customs Act, 1962 can be impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable, - (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding the value of the goods or five thousand rupees], whichever is the greater; [(ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher : Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the penalty so determined;] [(iii) in the case of goods in respect of which the value stated in the entry made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., not expressly mentioned. - Any person who contravenes any provision of this Act or abets any such contravention or who fails to comply with any provision of this Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure, shall be liable to a penalty not exceeding [one lakh rupees]. The above reproduced provisions of the Customs Act clearly indicated that penalty under Section 112 of the Customs Act, 1962 is provided for improper importation of the goods. The finding of the Original Adjudicating Authority in sub para no.ee on page no.349 of Order-in-Original is reproduced in the forgoing paragraphs. The said finding nowhere indicates that the appellant had anything to do with any imports. Therefore, imposition of penalty on the appellant under Section 112 of Customs Act, 1962 is without application of mind by the Original Adjudicating Authority, therefore, the same is set aside. Penalty under Section 114 of the Customs Act, 1962 is provided for any act of omission or commission in respect of export goods, if the goods become liable for confiscation. The Original Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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