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TMI Blog2025 (5) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... importers/exporters through the customs ports and airports, inter alia, at Kolkata and Haldia, as a Customs broker, under his sole proprietorship firm, K. C. Das & Co., Kolkata. The appellant is also a partner of the Customs Broker firm, Indo Friends Agency (hereinafter referred to as the "said firm") operating in Kolkata and handling clearance of consignments at Kolkata Port and Airport respectively, in accordance with the provisions of the Act and the Customs Broker Licensing Regulation, 2013. 2.1. A Show Cause Notice bearing DRI F. No. DRI/KZU/CF/ENQ-50/2017/Pt.-SURYA INTL/4560 dated December 02, 2017 was issued under Section 124 of the Act, which was made answerable to the Principal Commissioner of Customs (Airport & Cargo Complex) Commissionerate, Kolkata. The appellant was impleaded as Notice No. 7 in the Notice. 2.2. The Notice alleged that on the basis of specific information, the officers of Directorate of Revenue Intelligence, Kolkata Zonal Unit (DRI) intercepted two consignments imported vide Bills of Entry Nos. 9964456 and 9964457 both dated June 05, 2017 filed by the importer, M/s. Surya International, Shop No. 16, First Floor, VDS Market, Sector-110, U.P.- 201 304, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established in as much as although the watches were marked as EMPORIO ARMANI, FOSSIL, HUBLOT, TAG HEUER, TAG HEUER (CARRERA), on examination of the authorized representatives of the IPR Right Holders, the goods were found to be counterfeit products. Accordingly, the said goods were suggested for destruction post adjudication in terms of Rule 11(1) of the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Besides, the seized declared goods such as Mobile Cover, Mobile Screen Guard and USB Cable having seizure value of Rs.36,98,700/- imported against the said two Bills of Entry were sought to be confiscated under Section 119 of the Act. The rest of the seized goods containing wrist watches of brands POLICE, CORUM, GC, OMEGA, PATEK PHILIPPE, RADO, CARTIER, LONGINES and ROLEX (in respect of which whether the goods were counterfeit or not could not be conclusively established due to non-participation of the representatives of the IPR Right Holders), USB Flash Drive and Memory Cards of Sandisk and HP, Headphone, Wireless Bluetooth and FM Stereo and MP-3 Player, Mobile Phones, Mobile Phone Parts and other electronic items having seizure value of Rs.73,87,28,960/- were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has allowed the appeal of the said firm and set aside the impugned order dated July 05, 2019 of the Commissioner, upon holding that the said order of the Commissioner revoking the appellant's Customs Broker Licence and forfeiture of security deposit to the Department was erroneous and unsustainable. In terms of the said Final Order of the Tribunal dated 21.09.2019, the respondents has restored the Customs Broker Licence of the said firm with effect from 22.07.2020 . 2.10. Thereafter, after a lapse of almost three years, the Principal Commissioner proceeded with the adjudication under the said show cause notice dated 02.12.2017, whereupon the impugned order was passed, whereby the Principal Commissioner, inter alia, imposed penalties of Rs. 55.00 lakhs each upon the appellant under Section 112(a)(i), 112(b) and 114AA of the Act respectively. Being aggrieved thereby the instant appeal has been preferred by the appellant. 3. Regarding the penalties of Rs.55,00,000/- each imposed on the appellant under Sections 112(a)(i), Section 112(b) and Section 114AA of the Act, in the impugned order, the appellant submits that each are patently erroneous and unsupported by materials on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In this regard reliance is placed upon the following decisions:- (i) Commissioner of Customs Vs. Junaid Kudia 2024 (16) CENTAX 504 (SC) - affirming Junaid Kudia Vs. CC [2024 (16) CENTAX 503 (T)] (II) Commissioner of Customs Vs. Jeen Bhavani International 2023 (6) CENTAX 14 (SC)- affirming Jeen Bhavani International Vs. Commissioner of Customs 2023 (6) CENTAX 11 (T) (iii) Hi Tech Abrasives Limited Vs. Commissioner of C. Ex & Cus 2018 (362) ELT 961 (Chhattishgarh), (iv) Basudev Garg Vs. Commissioner of Customs 2013 (294) ELT 353 (DEL) (v) Gobinda Das Vs.Commissioner of Customs (Prev.) 2023 (7) CENTAX 201 (T-Cal) 3.2. The appellant submits that the finding of the adjudicating authority that the appellant had learnt about the wrong intention of Mayur Mehta after meeting him at the hotel on VIP Road, Kolkata is a figment of imagination or assumption on the part of the Principal Commissioner, in support of which not a single legally tenable material evidence exists. No such document or evidence has also been disclosed. In the premises, the purported findings that the appellant chose not to inform the Department about the alleged wrong intention of Mayur Mehta or had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty for improper importation of goods upon 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 111 of the Act or abets the doing or omission in doing of the specified act. Except for assumptions, presumptions, suppositions, surmises and/or conjectures, there is nothing on record of the impugned proceedings, including the show cause notice or the impugned order which satisfy the tests settled by Courts and Tribunal, which have to be satisfied for a person to be held to be liable for penalty under this provision. None of the said assumptions, presumptions, suppositions, conjectures and surmises can satisfy the said requirement of law. Moreover, even these surmises, conjectures, assumptions, presumptions and/or suppositions have no substance or merit. They are based on figment of imagination of the Principal Commissioner or on the basis of his closed, biased and pre-determined mind, with sole intent to wrongfully penalize the appellant. This is impermissible in law. The imposition of penalty upon the appellant under Section 112(a) of the Act is therefore illegal, invali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and/or conjectures and/or assumptions or presumption which have no support from the materials on record and/or are inferences based on the fertile imagination of the Principal Commissioner. None of the same satisfy the requirement of Section 114AA of the Act for invocation thereof against the appellant. The imposition of penalty upon the appellant under Section 114AA of the Act by the impugned order, amounting to Rs. 55 lakhs, is also therefore illegal, invalid and unsustainable. 4. The Ld. A.R. reiterated the findings in the impugned order. 5. Heard both sides and perused the appeal documents. 6. We observe that penalties of Rs.55,00,000/- each has been imposed on the appellant under Sections 112(a)(i) of the Act, Section 112(b) and Section 114AA of the Act on the basis of the finding that the appellant represented Lotus Impex (India) and Ambey Telecom in their alleged importation of the goods. We observe that the appellant has not filed the Bills of Entry for the importation of the goods. We find that the appellant had no role in the importation, filing of Bills of Entry, documentation, examination of the goods or any work whatsoever related to the import and clearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and commission. 6.2. From the allegations in the Notice, we observe that the allegation against the appellant is that he has introduced the alleged Custom Broker Nasir Uddin to number of importers. The allegation in the Notice reveals that DC Shri. Navneet Kumar connived with various brokers to mis-declare and import the said goods. We observe that there is no evidence brought on record to substantiate the allegation that the appellant has introduced the customs brokers to the DC Shri. Navneet Kumar. Even if it is accepted that the appellant has introduced some customs brokers to the DC, it cannot automatically lead to the allegation that the appellant has connived to mis declare the goods imported. Thus, we observe that the findings in the impugned order by the Ld. adjudicating authority is only on the basis of assumptions and presumptions without any evidence to support it. 6.3. Another evidence adduced in the notice is the alleged deposit of Rs. 5,00,000/- by Pasific Enterprises to the account of Nirmala Bala Trading firm related to the appellant. From the records, we find that M/s. Nirmala Bala Trading Co. is a proprietorship firm of Chandan Das, who is the brother of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot filed the Bills of Entry for importation of the gods. We also find that the appellant had no role in the importation, filing of Bills of Entry, documentation, examination of the goods or any work whatsoever related to the import and clearance of any of the consignments of the importers. Thus, we hold that the appellant has not fulfilled any of the conditions required for imposition of penalty under Section 112(a) (i) of the Customs Act. 1962 and hence, we hold that penalty imposed on the appellant under section 112(a) (i) is not sustainable and hence we set aside the same. 6.7. Section 112(b) of the Act provides for imposition of penalty for importation of goods by any person who acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, 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 of the Act. We observe that there is no material evidence available on record to establish that the appellant is concerned with any of the acts mentioned in the said section, which make the imported goods liable to confiscation under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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