2008 (12) TMI 612 - AT - Customs

Summary

Issues Involved:
1. Liability of the appellant u/s 112(a) of the Customs Act, 1962.
2. Validity of penalty imposition on the appellant.
3. Distinction from previous case laws.

Summary:

1. Liability of the appellant u/s 112(a) of the Customs Act, 1962:
The appellant, Shri Champaklal Prabhudas Desai, was alleged to have acted as a broker in the sale of non-transferable advance licences, thereby abetting the illegal sale of goods imported duty-free against these licences. The Show Cause Notice was issued for penal action u/s 112(a) of the Customs Act, 1962, for violating Notification 30/97 dated 1-4-97.

2. Validity of penalty imposition on the appellant:
The appellant contended that he was not a regular licence broker and only facilitated the transaction on behalf of a bedridden friend, receiving Rs. 25,000/- as commission. He claimed ignorance of the non-transferable nature of the licences. The Tribunal's decision in Commissioner of Customs, Mumbai v. M.D. Corporation was cited, arguing that Customs have no jurisdiction to impose penalties on brokers for illegal trading of non-transferable advance licences.

3. Distinction from previous case laws:
The learned DR argued that this was a conspiracy involving brokers and other noticees to import duty-free goods against fraudulently obtained licences. The case of Nandlal Kishandas Khemani v. Commissioner of Customs (Import), Mumbai was referenced, where penalty was imposed on a broker involved in duty evasion, not merely as a licence broker.

Judgment:
The Tribunal found the facts similar to Nandlal Kishandas Khemani's case, where the appellant's involvement was with duty evasion. However, considering the appellant's minor role and the commission received, the penalty was reduced from Rs. 5 lakh to Rs. 50,000/-.

Separate Judgment by Member (Judicial):
Member (Judicial) disagreed, noting the lack of evidence that the appellant knew the licences were fraudulently obtained. The Tribunal's decision in M.D. Corporation was deemed relevant, and it was concluded that mere introduction of the broker to the buyer did not constitute an offence under the Customs Act. The appeal was allowed, setting aside the entire penalty.

Final Order:
In view of the majority order, the appeal was allowed, and the penalty imposed upon the appellant was set aside.