2016 (11) TMI 139 - AT - Customs

Misdeclaration of value of goods - duty drawback - personal penalty - role of the appellant (third party) - moral responsibility - Held that - There is no evidence on record to show that appellant was the beneficiary of the drawback amounts remitted into the account of the exporter in Bank of Maharashtra. Appellant has not admitted to participation in the offence either. In these circumstances, statements of others connected with the impugned exports cannot, of themselves, establish anything other than the outline of the transactions and the persons connected with the commercial aspect of the transaction. Without either handling the goods between the entry for export and its departure from India or being a signatory to any of the declarations in connection with the export, we are unable to agree with the adjudicating authority that all, and any, persons connected with a business transaction at a value higher than its actual worth at the time of export should be penalised under section 114 which is applicable for any act of omission or commission in relation to the contravention by the goods. Whatever may be the extent of tutelage in deviancy by the appellant, to allow such influencers to be brought within the jurisdiction of the Customs Act, 1962 has the ramification of intrusiveness into areas that go beyond the objects and purposes of customs legislation. The boundaries of action under the Customs Act, 1962 is limited to declaration (or failure to declare) vis-a-vis the compliance required thereof under the customs law. To the extent that the role of the appellant in non-compliance has not been established, he is clearly beyond the pale of penal action under that statute. The imposition of penalty on the appellant is without authority of law and is set aside - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Confiscation of exported goods and imposition of redemption fine.
2. Imposition of penalty under Section 114(iii) of the Customs Act, 1962.

Issue 1: Confiscation of Exported Goods and Imposition of Redemption Fine

The appeals by the Revenue challenge the failure to confiscate exported goods with an option to redeem on payment of a fine. The goods were exported under a claim for drawback, and the foreign exchange proceeds were not repatriated, with the value of the goods allegedly misdeclared to about eight times their actual value. The goods were liable to confiscation under Section 113 of the Customs Act, 1962, and the adjudicating officer had the authority to impose a redemption fine under Section 125 of the Customs Act, 1962. However, the original authority confiscated the goods but did not impose a fine, which led to the Revenue's grievance.

The Tribunal observed that confiscation should be exercised in accordance with the law and is not to be done whimsically. The export goods were not physically available within India for confiscation. Section 125 of the Customs Act, 1962, indicates that the option to pay a fine in lieu of confiscation is to be given to the owner or the person from whom the goods were seized. The goods in question had never been seized, and the exporter could not be considered the owner of the goods after export. Section 126 of the Customs Act, 1962, mandates that confiscated goods vest in the Central Government, and the officer adjudging confiscation must take possession of the goods. Without the goods being available, the liability to confiscation may be adjudged without actual confiscation. Therefore, the Tribunal found no merit in the appeals of Revenue and dismissed them.

Issue 2: Imposition of Penalty under Section 114(iii) of the Customs Act, 1962

The appeal by Shri Atul Dalpatram Pandya challenged the imposition of a penalty on him under Section 114(iii) of the Customs Act, 1962, related to the exports by M/s President Fashions. M/s President Fashions had shipped 143 consignments of readymade garments and claimed a drawback, of which a significant amount was sanctioned and paid. Proceedings were initiated for recovery of this amount due to misdeclaration of the FOB value. The exporter was held ineligible for drawback under Section 76 of the Customs Act, 1962, and the goods were liable for confiscation due to misdeclaration.

Shri Atul Dalpatram Pandya was alleged to have manipulated the exports to claim ineligible drawbacks and withdrew the money through fictitious entities. He denied any link to M/s President Fashions and disputed the findings based on statements from interested parties who were not cross-examined. The Tribunal noted that the appellant was not involved in filing shipping bills, signing documents, or handling goods. There was no evidence that he benefited from the drawback amounts. The Tribunal cited various legal precedents emphasizing the need for evidence of knowledge or intent for abetment charges. The Tribunal concluded that the imposition of a penalty on the appellant was without authority of law and set it aside.

Conclusion:

The Tribunal dismissed the appeals of the Revenue regarding the failure to impose a redemption fine on confiscated goods due to the impracticality of such action without possession of the goods. The appeal by Shri Atul Dalpatram Pandya was allowed, setting aside the penalty imposed on him due to a lack of evidence linking him to the alleged violations under the Customs Act, 1962.

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