2015 (5) TMI 18 - AT - Customs

Mis-declaration of quantity and value of goods denial of claim of drawback - Action against the CHA for mischievous act done where there is no proposal in the SCN - Difference of opinion - Majority order - Held that - When the action, under Customs House Agents Regulations was not part of the show cause notice and was not part of the adjudication order and in the appeals filed against the impugned order, the only point of dispute was as to whether or not penalties under Section 114 and 117 of the Customs Act, 1962 are imposable on the appellants, it is not at all correct for the Tribunal to go into the question of taking action against the appellant under Customs House Agents Regulations. It is well settled law that Adjudicating Authority and Appellate Authority cannot travel beyond the allegations made in the show cause notice. Penalty u/s 114 and 117 - Held that - There was knowledge on the part of said appellants that the goods being exported by M/s. A K J Enterprises was mis-declared or over-valued. Admittedly, when the CHA and the freight forwarding agency are handling the particular export and are entering the relevant data on the documents to be presented for the export purpose, they are relying upon the declarations made by the exporters. If the exporter has made wrong declaration, the same are bound to be reflected in the export documents. As such, merely on that basis, it cannot be said that all the persons who only have prepared the export documents have mis-declared the same so as to invite the penal provisions. To invite penalty, it has to be shown that said persons have done so with full knowledge and with a malafide intention and as such has abetted the exporters. There is no dispute about the description of the goods and only allegation is are as regards quantity and value of the same. CHA and the freight forwarders are not expected to verify the correctness of the value declared by the exporters. It is seen that even Customs officer finally accepted the said declaration and allowed the clearance and it was only subsequently on investigation by SIIB that mis-declaration as regards the value of exported goods came to surface. As such, in the absence of any evidence indicating any direct role played by the said appellants for the fraudulent over valued export by M/s. AKJ Enterprises, we find no reasons to impose penalties on the present appellants under the provisions of Customs Act. If any technical or procedural offence about the working of 'G' card holders on behalf of CHA has been found by the Revenue, the action should have been taken under the Customs House License Regulation Act and the said factor cannot be taken into consideration for imposing penalties in terms of Customs Act on account of aiding and abetting the exporters, in the absence of any evidence to that effect. - Penalties imposed on the appellants are set aside - Decided in favour of appellants.

Summary

Issues Involved:
1. Imposition of penalties under Section 114 and 117 of the Customs Act.
2. Mis-declaration and over-valuation of export goods.
3. Role and knowledge of appellants in the fraudulent export.
4. Procedural violations and mens rea.
5. Applicability of Customs House Agents Regulations.

Detailed Analysis:

1. Imposition of Penalties under Section 114 and 117 of the Customs Act:
The appeals challenged the imposition of penalties under Sections 114 and 117 of the Customs Act. The Commissioner had imposed penalties of Rs. 1 lakh and Rs. 2 lakhs on the appellants in two separate orders. The Tribunal examined whether the penalties were justified based on the evidence and the involvement of the appellants in the fraudulent activities.

2. Mis-declaration and Over-valuation of Export Goods:
The investigation revealed that M/s. AKJ Enterprises had mis-declared the quantity and value of the exported goods to claim undue drawback benefits. The Commissioner confirmed the allegations against M/s. AKJ Enterprises and imposed penalties on various individuals, including the appellants.

3. Role and Knowledge of Appellants in the Fraudulent Export:
The Tribunal found no evidence indicating that the appellants were aware of the fraudulent export activities by M/s. AKJ Enterprises. The Commissioner had observed that the appellants were used by the exporting firm to carry out the fraudulent export, but there was no proof of their knowledge or malafide intention. The appellants were primarily involved in handling export documents based on the declarations made by the exporter.

4. Procedural Violations and Mens Rea:
The Tribunal noted that penalties under the Customs Act require proof of mens rea or malafide intention. The Commissioner had imposed penalties on technical grounds, such as failure to verify the antecedents of an employee and the misuse of passwords. However, the Tribunal emphasized that penalties should be based on evidence of intentional wrongdoing. The Tribunal referred to the case of U. Sivasubramanian vs. CC, Trichy, which held that penalties cannot be imposed without evidence of active involvement in the offense.

5. Applicability of Customs House Agents Regulations:
There was a difference of opinion between the Members on whether to direct action against the appellants under the Customs House Agents Regulations. Member (Technical) suggested that the appellants should be dealt with under these regulations to prevent future misconduct. However, Member (Judicial) argued that such directions were beyond the scope of the current appeals and the impugned order. The third Member, Rakesh Kumar, agreed with Member (Judicial), stating that the Tribunal cannot address issues not raised in the show cause notice or the adjudication order.

Final Decision:
The Tribunal set aside the penalties imposed on the appellants, concluding that there was no evidence of their knowledge or malafide intention in the fraudulent export activities. The directions for action under the Customs House Agents Regulations were excluded from the final order, as they were beyond the scope of the appeals.

Pronouncement:
The final order was pronounced in the open court, setting aside the penalties and excluding the directions for action under the Customs House Agents Regulations. The appeals were allowed with consequential relief to the appellants.