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TMI Blog2024 (11) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... esin without payment of Customs duty under Advance Authorization. On the basis of information received from the DRI, Pune that the imports made by M/s Blazeing Star Trade Pvt. Ltd. under Advance Authorization appears to be suspicious, enquiry was initiated and on being reported by CGST, Dehradun that the said importer firm is non-existent at the declared address, the goods imported vide Bills of Entry filed by M/s. Blazeing Star Trade Pvt. Ltd. were placed under Seizure. During the investigation statements of Custom Broker M/s Sarthee Shipping Co., Shri Ritesh Jain, Proprietor of M/s Sunil Tanjea Associates were recorded and summons/letters were also issued to the Director of M/s. Blazeing Star Trade Pvt. Ltd. The said goods were claimed to have been sold on High sea sale basis by M/s Sunil Taneja Associates to M/s Blazing Star. After the initiation of enquiry and seizure of goods M/s Sunil Taneja Associates cancelled the HSS and required to allow them to pay the duty to clear the goods. When no reply was received from the importer M/s Blazeing Star Trade Pvt. Ltd., the request of M/s Sunil Taneja Associates was considered and they were allowed to amend the Bills of Entry in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide intent of the Appellant. The Appellant on realizing that the original importer may be fictitious, paid entire duty along with interest. Penalty ought not be imposed in the absence of mens rea. It is settled law that for imposition of penalty under Section 112 of the Act mens-rea has to be established about the wrongful act. He placed reliance on following judgements:- (i) Commissioner of Customs (Import) Vs. Trinetra Impex Pvt. Ltd. -2020(372)ELT 332 (Del) (ii) Suresh Rajaram Newagi Vs. Commissioner of Cus 2008(228)ELT 211. (iii) Suresh Rajaram Newagi Vs. Commissioner of Cus. 2008(228) ELT 211 (iv) Hindustan Steel Ltd. Vs. State of Orissa - 1978(2)ELT (J159) (SC) (v) Commissioner of Customs, Amritsar Vs. Kamal Kappor - 2007(216)ELT 21 (P&H) 2.3 He argued that the Appellant in the normal course of business entered into a High Sea Sales agreement for import of PVC Resin with Blazeing Star who were the holder of Advance Authorisation. As per the HSS agreement, the Appellant was entitled to 2% CIF value as consideration. Other than this consideration, the Appellant has not gained in any way from the alleged contravention. In fact, the Appellant did not receive their 2% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Origin Certificate provided by the importer or his agents. In the present case, the Appellant has not facilitated the alleged offender in committing the alleged offence. The revenue has not brought forward any evidence to show that the appellant was aware about the fictitious nature of the High Sea Buyer and has done any positive act in the alleged offence. He placed reliance on the following decisions:- (i) Syndicate Shipping Services (P) Ltd. Vs. Commissioner of Customs, Chennai - 2003-(154)ELT 756 (CESTAT- Chennai) (ii) Yogesh Kumar Vs. CC -2016(344)ELT 1042 (iii) M/s Schenker India Pvt. Ltd. Vs. Commissioner of Customs -2019-TIOL-2741-CESTAT-BANG. (iv) M/s. Diamond Shipping Agencies Pvt. Ltd. Vs. Commissioner of Customs, Tiruchirappalli - 2017-TIOL-4151-CESTAT-MAD. 3. Shri Prashant Tripathi, Ld. Superintendent(AR)appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. Heard both sides and have gone through the submissions made by them as well as facts on record. The issue that comes up for decision is whether the Appellant and its proprietor are liable to pay penalty under Section 112(a)(ii) and 114AA of the Act, respectively, along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no mis-declaration in Bills of Entry. After the amendment, the goods in dispute are not imported under Advance Authroization and there are no discrepancies in relation to value, quantity of the goods. In these circumstances, we find no reason to sustain the confiscation of goods and imposition of penalties on Appellant. 4.3 Without prejudice, we also find that appellant has, prior to issuance of show cause notice dtd. 17.05.2023, deposited the entire duty, without taking benefit of Advance Authorization, alogn with interest. This shows that the intention of Appellant was always bona fide. Further revenue has not brought any evidence to show that the Appellant in any way abetted Balzeing Star in importing the said goods under fake Advance Auhorisation or that the Appellant was aware about the fictitious nature of Blazeing Star. Further it is also not the case of the revenue that the Appellant had any stake in the firm or business of Blazeing Star. It is also not the case that the Appellant -Proprietor had any connection with Blezeing Star. Importantly, the Appellant on realising that the original importer may be fictitious, paid entire duty along with interest. We also agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the justice and fairness demands that penalty of Rs. 25,000/- will be sufficient under Section 112 of the Customs Act on the applicant in this case for carrying the TV for ulterior design of smuggling of TV for monetary consideration." 4.6 As regard the imposition of penalty under Section 117 of the Act on M/s Saarthee Shipping Co, (Custom Broker) we find that as far as penalty under Section 117 is concerned, it can be imposed on any person for contravention of any provision of the Act or abetting any such contravention or failing to comply with any provision of the Act with which it was his duty to comply for which no express penalty is provided. As it is clear, penalty under Section 117 are for contravention, not expressly mentioned. But, there should be sufficient evidences to show mala fide intention resulting in contravention of any provisions warranting penalty. There is no material on record to conclude that the appellant facilitated misdeclaration of imported goods. Penalty under Section 117 of the Customs Act, 1962 can be imposed only if abetment on the part of the appellant is brought out which means that the appellant should have knowledge or reason to believe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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