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TMI Blog2023 (12) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... at highly over invoiced values, thereby availing undue export incentives viz., Drawback, DEPB, Focus Product Scheme etc. Searches were conducted and subsequent investigations undertaken revealed that Shri Sajjan Kumar was involved in submitting forged invoices of overvalued goods for export by filing Shipping Bills and had claimed Duty Drawbacks along with several persons including the IEC holders. The appellant, a partner of the overseas buyer, was involved in the abetment of the said forged exports. The said forgery was admitted by all the noticees in their statements recorded under Sec 108 of the Customs Act, 1962. A show cause notice dated 23.08.2012 was issued proposing for imposition of penalty on the appellant, and vide Order-in-Original dated 25.04.2019, penalties were imposed on various exporters including the appellant. 3. At the outset, the learned Counsel for the appellant submitted that Mr. Alip Kumar Das, a co-noticee in the subject show cause notice had approached the Tribunal by way of Customs Appeal No. 52100 of 2019 seeking deletion of penalty imposed upon him under Section 114(iii) and Section 114AA of the Customs Act, 1962. The Tribunal vide order dated 14.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel submitted that the impugned order had been passed without examining the contentions/ submissions of the Appellant in the reply to the Show cause notice and consequently the impugned order was not sustainable. In support of his contention, he relied on the following case Laws: 1. Kranti Associates Pvt. Ltd. and Others vs. Masood Ahmed Khan and Others [(2011 (273) ELT 345 (SC)] 2. Jindal Stainless Limited v. Designated Authority Directorate, General of Anti- Dumping and Allied Duties [Anti-Dumping Appeal No. 50291 of 2018, CESTAT Principal Bench, New Delhi] 3. Deepak Nitrite Limited v. Designated Authority Directorate General of Anti-Dumping and Allied Duties [Anti-Dumping Appeal No. 50401 of 2018, CESTAT, Principal Bench, New Delhi] 3.3 The learned Counsel further submitted that though no time limit for adjudication of show cause notices had been prescribed, the adjudication should have been done within a reasonable period of time. It is a trite law that when no time limit is prescribed under the law, it has to be done within a reasonable period of time i.e. preferably within three years and not later than five years. However, there was a delay of more than 6 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monetary fines and the seizure of property. The nature of the punishment depends on the gravity of the offence, with penalties for improper import or export of goods outlined in Sections 112 and 114 of the Customs Act. 7. We now go on to deal with the first submission of the Ld Counsel that this Tribunal in the case of a co-noticee has reduced the penalty holding that Shri Alip Kumar Das was involved in keeping the accounts, doing bank work and preparing invoices, packing list as per the directions of the alleged mastermind Sh Sajjan Kumar. This Tribunal further held that the co-Noticee played no role in the purchase of goods and neither was involved in any negotiations with any of the parties in India or outside India. In the instant case, the appellant was a partner in the Dubai-based firm M/s. Aan Impex along with Mr Hussain Abdul Radha Mohammad Al Aswami. It is an admitted fact that the appellant used to visit Dubai every three months for business purposes and used to get commission in cash on the profits earned. It is also admitted by the appellant that he was aware of the modus operandi adopted in the case where the exporters had shown highly inflated values in their invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular, 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. 8.1 A perusal of the provisions above makes it clear that any action by any person which renders imported or exported goods to confiscation is liable for penal action under section 114 of the Customs Act. In addition, any person who has signed a false or incorrect document is liable for penalty under section 114AA of the Customs Act. The Customs Act deals with the "Confiscation of goods and conveyances, and imposition of penalties". It is further significant to note that the Legislature has simplicitor used the word "any person" to fasten the liability of a penalty. The Customs Act has not defined the word "person" and, therefore the definition and rules of interpretation contained in the General Clauses Act, 1897, can be taken recourse to. Section 3(42) of the General Clauses Act defines "person" to mean "person shall include any company or association or body of individuals, whether incorporated or not". A partnership firm therefore falls within the definition of 'person' as defined in the General Clauses Act. It is on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant's role in the fraudulent exports. Further, as regards the contention that the appellant was not aware of the wrong doings in the firm, we note that the Supreme Court judgment in Standard Chartered Bank [2006 (197) E.L.T. 18 (S.C.)], has held that where contravention has been committed with consent of or connivance of or attributable to negligence of partner of partnership firm, such partner can also be proceeded against. Consequently, imposition of penalty on the appellant is correct, more so as the appellant has accepted in his statement that he was aware that the subject export goods were overvalued. 8.3 In the above context, we further note that the Hon'ble Apex Court in the case of Om Prakash Bhatia v. CC, Delhi [2003(155)ELT 423(SC)] dealt with the over invoicing of export goods, and held that, when the importation or exportation, of the goods are subjected to certain prescribed conditions to be fulfilled either before or after clearance of the goods, and if those conditions are not fulfilled, the said goods would be considered as prohibited goods and Sections 2(23), 11 and 113(d) of the Customs Act, 1962 would come into play and the exporters would be liable for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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