2016 (1) TMI 916 - AT - Customs

Levy of penalty - appellant being an employee of CHA filed bill of entry for clearance of radio cassette recorders, crockery, etc. imported in the name of one of M/s. Idol Enterprises and the said consignment was mis-declared in respect of value as well as quantity. - whether the appellant has acted or omitted to act in the manner which would render the goods liable for confiscation and the appellant being an employee of CHA whether he is liable for penalty under Section 112(a) of the Customs Act, 1962. Held that - Firstly, though the appellant has retracted the statement given by him to the authorities, factually he has produced documents which indicated mis-declaration of the consignments which were cleared earlier. The said mis-declaration of the value as well as quantity is concerned with Mr. Phirozebhai, whom the appellant was unable to present before the authorities. The appellant was, in my view, aware of the mis-declaration of the value and the description of the goods of the consignments in question in this appeal as well as for the earlier consignments. Hence retraction of the statement would not improve the case of the appellant before this Tribunal. Secondly, if the appellant had nothing to hide, his action of producing some other person as Phirozebhai before the investigating authorities itself indicate that he had something to hide and was not cooperating with the authorities to ascertain the mis-declaration of the value as well as description of goods. Levy of penalty confirmed - Decided against the appellant.

Summary

Issues:
1. Alleged contravention of Customs Act, 1962 by abetting mis-declaration of goods' value and quantity.
2. Applicability of penalty under Section 112(a) and (b) of the Customs Act, 1962.
3. Role of the appellant as an employee of CHA in filing bill of entry for imported goods.
4. Retraction of statement by the appellant and its impact on the case.
5. Failure to present Mr. Phirozebhai before the authorities and its implications on the investigation.

Analysis:

Issue 1: The appellant was found to have contravened the Customs Act, 1962 by abetting mis-declaration of goods' value and quantity. The appellant's role as an employee of CHA in filing bill of entry for imported goods was central to the case. The mis-declaration was attributed to the appellant, leading to the imposition of a penalty under Section 112(a) and (b) of the Customs Act, 1962.

Issue 2: The appellant's counsel argued that the provisions of Section 112 were not attracted as there was no abetment from the appellant. The counsel highlighted that the appellant had provided all available information to the authorities and had retracted his statement. However, the departmental representative contended that the appellant was part of a larger conspiracy involving mis-declaration of goods and failed to present crucial evidence, indicating his involvement.

Issue 3: The Tribunal considered whether the appellant, as an employee of CHA, acted in a manner rendering the goods liable for confiscation and thus subject to penalty under Section 112(a) of the Customs Act, 1962. The appellant's retraction of statements and his role in presenting someone else as Mr. Phirozebhai were pivotal in determining his liability.

Issue 4: The Tribunal noted that the appellant's retraction of statements did not absolve him of culpability, as he had produced incriminating documents related to mis-declaration. The failure to present Mr. Phirozebhai and the act of presenting another individual in his place indicated an attempt to obstruct the investigation, leading to the conclusion that the penalty under Section 112 was justified.

Issue 5: Ultimately, the Tribunal upheld the adjudicating authority's decision to penalize the appellant under Section 112 of the Customs Act, 1962. The Tribunal found no grounds to interfere with the findings, considering the appellant's actions and the circumstances of the case. The appeal was consequently rejected, affirming the legality of the impugned order.