9911796707
TMI Blog2024 (5) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... s on 25.09.2012. It was found to contain 992 bags of 20 kg. each of gypsum plaster in powder form packed in white coloured bags as against the declared quantity of 1250 bags. Behind these white coloured bags, the officers found 240 light brown colour carton boxes. On opening these carton boxes, it was found to contain cigarette packets. The cigarette packets did not contain any statutory warning as stipulated under Cigarettes and Other Tobacco Products (packing and labelling) Amendment Rules, 2009 and did not show date of manufacture and date of expiry. The cigarettes valued at Rs.1,22,85,440/- as well as the gypsum plaster valued at Rs.2,74,463/- were seized under the Customs Act 1962. As undeclared cigarettes were found concealed behind gypsum plaster powder bags and also as the quantity of gypsum plaster was mis-declared Show Cause Notices were issued to the importer M/s. Ganga Enterprises and others. After due process of law, the original authority vide common order dated 12.05.2014 rejected the description of the goods declared under bill of entry dated 17.09.2012 and reassessed the goods. The original authority ordered for confiscation of the smuggled cigarettes and imposed r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o smuggle cigarettes in to the country. 5. The role of M/s. Ganga Enterprises, Shri Anil Gupta and Shri Yuvaraj Singh and Shri Jaffer is discussed in para 5 to 7 of the Show Cause Notice. 6. Shri Yuvaraj Singh did not respond to the summons issued to him repeatedly. All the summons were sent by RPAD and the tracking of India Post reveal that summons were served and received by Shri Yuvaraj Singh. However, instead of appearing before the officer, Shri Yuvaraj Singh sent a letter dated 15.12.2012 wherein he made an effort to distance himself from the impugned import. 7. In connection with investigation, the Delhi Zonal Unit of DRI caused search of the premises of the IEC holder (Shri Anil Gupta) which was mentioned in the import documents. When the officers visited the premises on 24.09.2012, it was found to be locked. The premises appeared to have been not opened for four months. The officers recovered two envelopes from the premises which were addressed to one Shri Yuvaraj Singh and sent by Shri Sanjay Goel, Delhi. Accordingly, the officers visited the premises of Shri Yuvaraj Singh who was found to be running a Call Centre in the name of M/s. Phoenix Technology Express and M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh under Section 112 (a) of the Customs Act 1962. 10. In para 36 of the order in original, the adjudicating authority has held that in the absence of material evidence in the Show Cause Notice that Shri Yuvaraj Singh provided any documents which was false or incorrect in any material particular, there is no ground to impose penalty under Section 114 AA. In the same para it was held that there is no indictment in the Show Cause Notice that Shri Vignesh or M/s. K.B.S. Manian and Brothers Pvt. Ltd, the CHA has knowingly or intentionally made, signed or used any declaration or statement or document which is false or incorrect in any material in particular. For this reason, the adjudicating authority has refrained from imposing penalty under Section 114 AA. 11. In para 37, the reasons for not imposing penalty on Shri Jaffer, Malaysia has been discussed. It is stated that no details are available regarding the identity or exact role played by Shri Jaffer and therefore penalty is not imposed on Shri Jaffer under Section 112 (a) Section 114 (AA) of the Customs Act 1962. 12. The Ld. Counsel adverted to Section 114 AA of the Customs Act 1962 and argued that the Show Cause Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is not the case where no goods are exported but only documents are created and the penalty imposed is exorbitant and disproportionate. We find that the original authority has not imposed penalties under Section 114 (i) and also 114 AA of the Customs Act 1962. The relevant provisions are extracted below:- "SECTION 114. Penalty for attempt to export goods improperly, etc.-- Any person 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 113, or abets the doing or omission of such an act, 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 three times the value of the goods as declared by the exporter or the value as determined under this Act), whichever is the greater," "SECTION [114AA. Penalty for use of false and incorrect material if a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction. Therefore, imposition of penalty is not warranted. 6. Accordingly, we set aside the penalty imposed on the appellants Shri Manohar S. Anchan, Shri Suresh Dalvi, proprietor of CHA firm M/s. Indian Seaways and Shri Gajanan Sudrik, employee of CHA firm under Section 114 of the Customs Act, 1962. Thus the appeals are allowed". 15. After appreciating the facts and evidence, we hold that the department has failed to establish that the appellants have connived or abetted in the overvaluation of goods and attempted export of the same. There is no iota of evidence to establish that appellants had falsified any documents. The ingredients of section 114A stands un established. Moreover, the invocation of sub-section (3) of section 147 against these appellant is totally erroneous. 16. In the result, the impugned order against the appellants ae set aside. The appeals are allowed with consequential relief, if any. 17. From the forgoing, we find that the order passed by the adjudicating authority in not imposing the penalty under Section 114 AA does not require any interference. The appeal filed by the department is devoid of merits. The appeals are dismissed. 18. The Bench appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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