2007 (4) TMI 57 - AT - Customs

Stay/Dispensation of pre-deposit Revenue contended that CHA has not brought to notice of department the undervaluation of the import and accordingly penalty imposed on him Held that CHA has not made any offence and not liable for any penalty

Summary

Issues:
Imposition of penalty under Section 112(a) of the Customs Act on a clearing agent for alleged awareness of undervaluation in imports and failure to notify the department.

Analysis:
The judgment by the Appellate Tribunal CESTAT, Bangalore, involved the imposition of a penalty of Rs. 2 lakhs on a clearing agent under Section 112(a) of the Customs Act. The penalty was based on the allegation that the agent was aware of the value of similar goods imported and cleared from another port but did not inform the department about undervaluation. The appellant contended that he was not aware of the factors leading to the lower price, citing time gaps between imports and fluctuating international market prices. The Tribunal considered various factors affecting the valuation of goods and noted the denial of the appellant's awareness of the imports at a lower price.

During the hearing, the consultant and JDR presented their arguments. The consultant highlighted that the allegation was based on only one bill of entry out of several handled by the appellant. It was argued that the negotiated price considers various factors like import quantity, indicating that attributing abetment of undervaluation to the clearing agent was incorrect. The Tribunal noted the lack of evidence showing connivance or abetment by the appellant in undervaluation.

The JDR referred to admissions and statements implicating the appellant, claiming knowledge of goods being cleared at a higher rate and the obligation to notify the department. In response, the consultant argued that knowledge of higher-priced imports did not equate to abetting undervaluation. The Tribunal deliberated on the revenue's allegation against the clearing agent, emphasizing the need for the revenue to prove undervaluation by the importer. It clarified that abetting typically pertains to offenses like smuggling and that assisting importers in filing entries does not automatically imply abetment. The Tribunal concluded that the appellant had made a case for waiving the penalty, allowing the stay application and ordering no recovery during the appeal's pendency.

In summary, the judgment highlighted the importance of proving undervaluation by the revenue and clarified that mere knowledge of goods being sold at lower prices does not necessarily constitute abetment. The Tribunal emphasized the need for clear evidence of wrongdoing before imposing penalties on clearing agents, ultimately ruling in favor of the appellant and granting the stay application.