2010 (12) TMI 92 - AT - Customs

Advance licence - duty free clearance - goods declared as alloy steel round bars - The goods were examined whereupon it was found that a part of the goods was non-alloy steel. - Mis declaration - Held that - It was found that the declaration of the goods as alloy steel was not prejudicial to the Revenue. It is also a fact found by the Commissioner that the importer produced advance licences for duty-free clearance of both alloy steel and non-alloy steel. In the event of such clearance not being allowed the importer was ready to use DEPB scrips. In any case any intent to evade any dues to the Revenue was not attributed to the importer. Such being the position of the importer the CHA can hardly be held to have indulged in any commission or omission in the nature of abetment so as to attract Section 112(a) of the Act.

Summary

Issues: Misdeclaration of goods leading to confiscation, imposition of penalty on importer and CHA, violation of natural justice in imposing penalty on CHA.

The case involved an importer who declared a consignment of goods as alloy steel round bars for duty-free clearance under an advance license. Upon examination, it was discovered that a portion of the goods was actually non-alloy steel, leading to a discrepancy in the declared quantity. The importer admitted to the misdeclaration, attributing it to a clerical error by their Customs House Agent (CHA). The Commissioner of Customs confiscated the goods under Section 111(m) of the Customs Act, imposed a fine, and penalties on both the importer and the CHA. The CHA appealed against the penalty.

Upon review, the Tribunal found that the penalty imposed on the CHA was unjust as they were not given a proper opportunity to defend themselves. The CHA was only heard as a representative of the importer and was not issued a show-cause notice as required by Section 124 of the Customs Act. This lack of procedural fairness led to the Tribunal vacating the penalty on the CHA based on the breach of natural justice principles.

Furthermore, the Tribunal analyzed the merits of the penalty imposed on the CHA and found that there was no evidence of the CHA abetting the importer's misdeclaration. The misdeclaration did not result in any loss to the revenue, as the importer had the necessary licenses for duty-free clearance and was willing to use alternative means if required. Drawing on precedent cases, the Tribunal concluded that the penalty on the CHA could not be sustained based on the lack of intent to evade revenue and the absence of abetment in the misdeclaration. The Tribunal cited relevant case law to support its decision, emphasizing that the penalty on the CHA was not justified in the circumstances. Consequently, the Tribunal set aside the penalty imposed on the CHA, allowing the appeal in their favor.