9911796707
TMI Blog2022 (2) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Prabakaran, is said to have stated that one Mr. Ravichandran, who was known to him, came with another person namely, Mr. Sugumar; that Mr. Sugumar requested him to file the Bills-of-Entry on behalf of M/s. J. J. Enterprises, who also gave him all the necessary documents on behalf of M/s. J.J. Enterprises; that he found that the description of the cargo of the Bill-of-Entry was given as "Furniture" (713 in number of packages); that Mr. Sugumar also told him that he was having business relationship with M/s. J.J. Enterprises; that Mr. Sugumar also revealed that he did not have the Customs Broker licence to file the Bills-of-Entry; that he did not know the proprietor of M/s. J.J. Enterprises; that he came to know about M/s. J.J. Enterprises through Mr. Sugumar, who approached him for filing Bill-of-Entry on behalf of M/s. J.J. Enterprises and also gave him the copy of the IEC certificate and the authorization letter to file the Bill-of-Entry; that he did not even know the contact number of the proprietor of M/s. J.J. Enterprises nor did the proprietor of M/s. J.J. Enterprises contact him. From this, it becomes clear that Mr. Sugumar handed over the IEC in question to M/s. Unique Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f-Entry for about 40 documents through M/s. Trade Wings (Customs Broker) and 6 documents through M/s. Unique Line; that Mr. Shanmugam, office staff of the appellant, used to give him invoices, packing lists and Bills-of-Lading; that he knew Mr. Ravichandran through Mr. Jayakumar; that Mr. Ravichandran had also introduced him to Mr. Prabakaran; that he did not have any documents relating to the 46 import consignments, which were already handed over; that he did not know any of the importers for whom he did the clearances; that for the above consignments, M/s. Raj Brothers had paid him Rs. 20,000/- per Bill-of-Entry and that he did not know the office location of M/s. Raj Brothers. 3.4 Thereafter, the statement of Mr. Hari Prabhu was recorded, wherein he has inter alia admitted that he was one of the Directors of M/s. Raj Brothers; that the appellant and their father were the other Directors; that he did not know anything about the importer M/s. J.J. Enterprises; that he and his brother gave Mr. Sugumar 46 import consignments for Customs clearance; that he did not know anything about the Bill-of-Entry in question, which was filed by M/s. Unique Line on behalf of M/s. J.J. Enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the co-noticees as to why the impugned goods should not be confiscated under Sections 111(d), 111(l) and 111(m) of the Customs Act, 1962 and as to why penalty under Section 112(a) ibid. should not be imposed on them. Order-in-Original No. 64212/2018 dated 29.06.2018 came to be passed, whereby the Adjudicating Authority confirmed the proposals made in the Show Cause Notice on all the co-noticees. Thereafter, the appellant herein preferred first appeal before the Commissioner of Customs (Appeals-II), Chennai, and the First Appellate Authority having rejected the same, the appellant has filed the present appeal before this forum. 6. Heard Shri N. Viswanathan, Learned Advocate for the appellant and Shri S. Balakumar, Learned Authorized Representative for the Revenue. 7.1 The contentions of the Learned Advocate for the appellant, inter alia, are that the impugned order was ex facie illegal and against the settled principles of law; that the First Appellate Authority committed gross injustice by violating the principles of natural justice; that the First Appellate Authority has exhibited clear bias and prejudice apart from exposing his non-application of mind in passing the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities and have also gone through the decisions/orders referred to during the course of arguments. 10. The only issue to be decided is: whether the penalty under Section 112(a) of the Customs Act, 1962 is rightly levied or not? 11. For the sake of convenience, Section 112(a) ibid. is extracted below: "Section 112. Penalty for improper importation of goods, etc. - Any person, - (a) 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, or ...." 12. By the above, the primary ingredient is that the person need not be an importer; it could be "any person". What is important next is that the person does or omits to do any act, in respect of any goods, by which the goods are made liable for confiscation under Section 111 ibid.; and the third important thing is the act of abetment for doing or omission of such act. The appellant has seriously contended that he is not the person covered under the definition of Section 2(26) ibid. wherein 'importer' is defined. Section 112(a) covers "any person" and hence, this contention of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 'mastermind'. 15. The specific case of the Revenue was that there was a mismatch in as much as certain items were missing, the quantity declared was much less than the actual quantity and the undervaluation, which clearly amounts to giving the incorrect figure. When he has admitted to having received invoice and packing list, nothing prevented the appellant from cross-verifying before sending the same for Customs clearance, which was the minimum that was expected of the appellant, which act amounts to a clear omission, for which penalty under Section 112(a) ibid. appears to be correct. This is also for the reason that similar penalty was imposed on the other co-noticees, who appear to have accepted the same without agitating further. 16. Insofar as the decisions relied on by the Learned Advocate for the appellant are concerned, in the case of M/s. R.S. Impex (supra), the Bill-of-Lading was in the name of the appellant therein and hence, the facts of that case being different from the facts of the case on hand, the said order is distinguishable. In the case of Ram Lal Kataria (supra), it is held that the confession of the co-accused cannot be the sole criterion, but here it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
