2003 (9) TMI 476 - AT - Customs

Appeal to Appellate Tribunal - Grounds - Show cause notice - Jurisdiction - Customs House Agent - Penalty - Imposition of - EXIM - Filing of documents - Advance licence - EXIM - Advance licence disclaimed by licensing authority

Issues Involved:
1. Jurisdiction of DRI to issue show cause notices.
2. Imposition of penalties on the Customs House Agent (CHA) and its Director.
3. Validity of the advance licences used in the import transactions.
4. Knowledge and involvement of the CHA and its Director in the fraudulent activities.
5. Quantum of penalties imposed.

Issue-wise Detailed Analysis:

1. Jurisdiction of DRI to issue show cause notices:
The appellants challenged the jurisdiction of the Directorate of Revenue Intelligence (DRI) to issue show cause notices, arguing that DRI does not qualify as a 'proper officer' of Customs. The Tribunal allowed the appellants to raise this new ground, despite it not being raised earlier. Various case laws were cited by the appellants to support their argument. However, the Tribunal noted that these cases involved show cause notices issued by the Assistant Director of DRI, who was not considered a proper officer. In the present case, the show cause notices were issued by the Additional Director General of DRI, who is authorized by the Central Government under Notification No. 19/90-Cus. (N.T.), dated 26-4-90, to perform the functions of the Collector of Customs. Therefore, the objection regarding jurisdiction was rejected as devoid of merits.

2. Imposition of penalties on the Customs House Agent (CHA) and its Director:
The Commissioner imposed penalties on the CHA and its Director for their role in the import transactions. The Commissioner's order highlighted that the CHA and its Director had full knowledge that the importers were either fictitious or the names mentioned in the import documents were pseudo names. The CHA conducted clearance activities in the name of non-existent firms and delivered the goods to the More Group of Companies. The Tribunal upheld the Commissioner's findings, stating that the CHA knowingly filed documents on behalf of non-existent importers, thus actively conniving in the evasion and fraud.

3. Validity of the advance licences used in the import transactions:
The appellants argued that the Commissioner did not examine whether the advance licences used by the importer were bogus or fake. They contended that the Commissioner could not have held anyone guilty without a decision on the validity of the licences. The Tribunal noted that the fraudulent nature of the licences was established once the licensing authority disclaimed issuing them. Therefore, the argument that the licences were not proven to be fake was rejected.

4. Knowledge and involvement of the CHA and its Director in the fraudulent activities:
The appellants claimed that they had no knowledge of the fraudulent nature of the advance licences and that they conducted business in the normal course. The Tribunal found that the CHA had full knowledge of the fictitious nature of the importers and actively participated in the fraudulent scheme. The CHA's role in filing documents on behalf of non-existent firms and delivering goods to the More Group of Companies demonstrated their involvement in the fraud.

5. Quantum of penalties imposed:
The appellants argued that the penalties imposed were excessive. The Tribunal acknowledged that the main perpetrators of the fraud were the persons behind the More Group of Companies, and the CHA played a secondary role. Considering this, the Tribunal decided to reduce the penalties imposed by the Commissioner. The Tribunal upheld 50% of the penalties imposed on each appellant and set aside the remaining 50%.

Conclusion:
The appeals were partly allowed. The Tribunal upheld the jurisdiction of the DRI to issue show cause notices, confirmed the involvement of the CHA and its Director in the fraudulent activities, and validated the penalties imposed by the Commissioner, albeit with a reduction of 50% in the quantum of penalties.

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