2016 (11) TMI 5 - AT - Customs

Levy of penalty for abetting Undervalution - retraction of statement - imposition of penalties u/s 112 of the CA, 1962 - import of body sprays - Held that - From the statement of the appellant recorded by the DRI it can be seen that the appellant has been consistently taking a stand that the primary role in negotiating the price and undervaluation with foreign supplier was of M.L. Patwari, though he too was in contact with Pannessar. The statement however contains an admission of undervaluation on the part of the appellant. It is also a fact that information was received from Indian High Commission has not been made part of relied upon documents. Looking at the facts of the case, it cannot be said that the primary role in the undervaluation was that of the appellant, though it is apparent that he played a significant role in the execution of the undervaluation. Under these circumstances and facts, we hold that the appellant is liable to penalty under Section 112. However, the penalty of ₹ 23,08,177/- is excessive. In view of the facts of the case, the penalty is revised from ₹ 23,08,177/- to ₹ 5 lakhs - appeal disposed off - decided partly in favor of appellant.

Summary

Issues:
1. Whether information received from the High Commission of India, London can be used against the appellant in a customs duty evasion case.
2. Validity of the retraction of statements made by the appellant.
3. Assessment of the penalty imposed on the appellant under Section 112 of the Customs Act, 1962.

Analysis:

Issue 1:
The appellant argued that the information received from the High Commission of India, London was not part of the relied-upon documents in the show-cause notice and therefore should not be used against them. The appellant contended that the statements recorded by DRI were retracted, and the penalty imposed was excessive. The AR, on the other hand, supported the impugned order, stating that the retraction made by the appellant was not immediate and hence not valid. The AR highlighted that the appellant was aware of the information from the High Commission of India, London. The Tribunal observed that while the appellant played a significant role in undervaluation, the primary role was attributed to another individual. Consequently, the Tribunal held the appellant liable for penalty under Section 112 but reduced the penalty amount from ?23,08,177 to ?5 lakhs.

Issue 2:
The appellant's counsel argued that the retraction of statements made by the appellant should be considered as they were not immediate and were retracted after a gap of 1-2 months. The AR contended that the retraction was not valid as it was not immediate. The Tribunal noted that the appellant's statements indicated his involvement in undervaluation, but the primary role was attributed to another individual. The Tribunal considered the timing of the retraction and the appellant's admission of undervaluation while revising the penalty amount.

Issue 3:
The Tribunal carefully analyzed the statements made by the appellant to the DRI, noting his consistent stance regarding the primary role in negotiating prices and undervaluation. The Tribunal acknowledged the appellant's involvement in the undervaluation process but determined that the penalty imposed was excessive given the circumstances. Consequently, the Tribunal reduced the penalty amount from ?23,08,177 to ?5 lakhs, considering the appellant's role and the facts of the case.

In conclusion, the Tribunal partially allowed the appeal, reducing the penalty imposed on the appellant under Section 112 of the Customs Act, 1962, from ?23,08,177 to ?5 lakhs, based on the analysis of the appellant's involvement in the customs duty evasion case and the retraction of statements.