2011 (7) TMI 220 - AT - Customs

Penalty - Misdeclaration of value - There is nothing on record that Shri Arun Sharma is not intelligent person. He opened a firm, Usha Trading Company, allowed goods to be imported in the name of the company - It can be seen from the reproduced findings that the adjudicating authority has held M/s. Usha Trading Company as the importer. If that be so, the penalty imposed on the current appellant under Sec,112 is unwarranted as this section was not invoked in the show-cause notice issued to the appellant - Appeal is allowed

Summary

Issues:
1. Imposition of penalty on the appellant by the Commissioner of Customs.
2. Dispute regarding the importer of the goods.
3. Interpretation of Section 114A of the Customs Act, 1962.
4. Consideration of penalty under Section 112 of the Customs Act.

Issue 1: Imposition of Penalty on the Appellant
The appeal was filed against an order by the Commissioner of Customs imposing a penalty of Rs. One lakh on the appellant for misdeclaration of value in the import of Sony Brand Button Cells and Battery Cells. The appellant argued that he was only assisting the importer, M/s. Usha Trading Company, and should not be held liable. However, the adjudicating authority rejected this defense and imposed the penalty under Section 112 of the Customs Act, 1962.

Issue 2: Dispute Regarding the Importer of the Goods
The appellant claimed that he was not the importer but was merely assisting M/s. Usha Trading Company. The departmental representative contended that the appellant had claimed himself as the importer by requesting DRI officers to clear the consignment and paying a commission to the owner of M/s. Usha Trading Company. The adjudicating authority held M/s. Usha Trading Company as the importer, leading to the conclusion that the penalty imposed on the appellant was unwarranted.

Issue 3: Interpretation of Section 114A of the Customs Act, 1962
Section 114A of the Customs Act pertains to penalties for short-levy or non-levy of duty due to collusion, misstatement, or suppression of facts. The appellate tribunal noted that the show-cause notice indicated penal action under this section against the appellant. However, the adjudicating authority invoked Section 112 instead of Section 114A, leading to the conclusion that the penalty on the appellant was unsustainable.

Issue 4: Consideration of Penalty under Section 112 of the Customs Act
The adjudicating authority imposed a penalty on the appellant under Section 112 of the Customs Act, which was found to be unwarranted as the appellant was not considered the importer of the goods. As Section 112 was not invoked in the show-cause notice, the tribunal held that the penalty imposed on the appellant was unsustainable. Consequently, the penalty was set aside, and the appeal was allowed.

This detailed analysis of the judgment highlights the key issues involved, the arguments presented by both sides, the relevant legal provisions, and the final decision of the appellate tribunal.