2022 (1) TMI 1334 - AT - Customs

Levy of penalty under section 114A, Customs Act, 1962 on the appellant, who is not the importer - HELD THAT - Section 114A ibid deals with imposition of mandatory penalty in certain cases. As per the Customs Act it is the importer who is to file the bill of entry to the proper officer u/s. 46 ibid while importing the goods and the assessment has to be made on that bill of entry and on such assessment, the duty is levied. Thereafter on payment of duty so assessed goods are cleared u/s. 47 ibid. If there is any non-levy or short levy on the goods so cleared then the procedure as contemplated by section 28 ibid is initiated and the competent officer of the department issues notice to the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified therein. Whereas Section 114A contemplates penalty for shortlevy or non-levy of duty on the person who is liable to pay the duty or interest as determined u/s.28 ibid. The language of the aforesaid section is plain and clear. From the case records it is clear that no duty or interest has been demanded from the appellant herein nor any duty or interest has been determined against him. It is the settled legal position that it is the importer who is liable to pay the duty not even its director or proprietor as the case may be and this view finds support from the decision of this Tribunal in the matter of NIPPON AUDIOTRONIX LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI 2000 (5) TMI 96 - CEGAT, COURT NO. I, NEW DELHI where it was held that The penalty contemplated by Section 114A can only be on the person liable to pay the duty and not to any other person. Penalty u/s. 114A is attracted only for the person who is liable to pay duty or interest under section 28 and not on anyone else. Therefore the imposition of penalty on the appellant herein under Section 114A ibid is without authority of law. The appellant could have been held liable for penalty under some other provision of the Act but not under Section 114A as the language of the said section is very clear and unambiguous. Appeal allowed.

Summary

Issues involved:
Whether a penalty under section 114A, Customs Act, 1962 can be imposed on the appellant who is not the importer.

Detailed Analysis:
1. The appeal challenges the order passed by the Commissioner of Customs (Appeals), Mumbai-Zone III, dated 29.1.2020.
2. The main issue is whether a penalty under section 114A of the Customs Act can be imposed on the appellant, who is not the importer but is claimed to be the claimant of the imported goods.
3. The case involves a Bill of entry filed by the importer and the IEC holder for import of goods, where investigations revealed mis-declaration by the importer. The department alleged that the appellant orchestrated the importation scheme. A show cause notice was issued to the appellant, importer, and others.
4. The Adjudicating Authority imposed penalties under sections 114A and 114AA on the importer, appellant, and others. On appeal, the Commissioner partly allowed the appeal, maintaining the penalty under section 114A but providing for reduced penalty to the appellant.
5. The appellant argued that the penalty on them is speculative and unjustified as they are not the importer. The appellant's counsel cited legal precedents to support their position. The Authorized Representative contended that the appellant was the actual importer based on evidence and statements recorded during the investigation.
6. The Member (Judicial) analyzed the provisions of Section 114A of the Customs Act, emphasizing that the penalty is to be imposed on the person liable to pay duty or interest as determined under section 28. It was noted that the importer had paid the customs duty, and no duty or interest had been demanded from the appellant. The Member cited legal precedents to support the position that penalties under section 114A are applicable only to the person liable to pay duty or interest.
7. Based on the analysis, the appeal filed by the appellant was allowed, with consequential relief as per law.

This detailed analysis of the judgment highlights the key legal arguments, factual background, and the Member's reasoning leading to the decision to allow the appeal.