2017 (3) TMI 1345 - AT - Customs

Imposition of penalty u/s 114 of CA, 1962 on freight forwarder - During the course of movement of goods from the factory to the port of export, the seals of the container were broken and the refractory bricks were substituted by Red Sanders and fake seals were placed - Held that - the department has not brought on record any specific evidence against the appellant to show the role played by him in substituting the goods en-route to the port of export. Since upon completion of the formalities of factory stuffing, the container was sealed in presence of Central Excise Officers, the appellant in the capacity of freight forwarder has complied with its obligation - substitution of goods en-route to the port cannot held the appellant responsible for imposition of penalty - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Penalties imposed under Section 114 of the Customs Act, 1962 on the appellant for involvement in the substitution of goods during export and failure to verify antecedents/KYC formalities.

Analysis:

Issue 1: Penalties under Section 114 of the Customs Act, 1962
The appeal challenged penalties imposed on the appellant for assisting in the substitution of refractory bricks with Red Sanders during the export process. The appellant contended that they were not involved in the fraud and had merely provided normal services for the exporter. The appellant argued that Section 114 did not apply as the substitution occurred after the sealing of the container by excise authorities. Citing precedents, the appellant claimed that penalties were unjustified. The respondent, however, supported the penalties as per the impugned order.

Analysis: The Tribunal noted that the appellant had facilitated the export process by arranging containers, providing documents, and complying with excise formalities. The substitution of goods occurred after the sealing of the container by excise officers, and no specific evidence implicated the appellant in the substitution. The Tribunal found that the appellant, as a freight forwarder, had fulfilled their obligations, and the act of substitution en-route could not be attributed to them. Consequently, the Tribunal held that the penalties imposed on the appellant were unwarranted and set aside the impugned order, ruling in favor of the appellant.

Issue 2: Failure to Verify Antecedents/KYC Formalities
One of the reasons for penalizing the appellant was the failure to verify the antecedents/KYC formalities of an individual involved in the substitution of goods. The appellant argued that no statutory provisions existed during the relevant period mandating the observation of KYC norms by freight forwarders. The appellant relied on legal precedents to support their stance that the penalty was unjustified.

Analysis: The Tribunal did not find merit in penalizing the appellant for failing to verify antecedents/KYC formalities. It was observed that no statutory provisions mandated the adherence to KYC norms by freight forwarders during the relevant period. Relying on legal precedents, the Tribunal concluded that the penalty on this ground was not justified. As a result, the Tribunal allowed the appeal in favor of the appellant, setting aside the penalties imposed under Section 114 of the Customs Act, 1962.

In conclusion, the Tribunal's judgment focused on the lack of evidence implicating the appellant in the substitution of goods and the absence of statutory provisions mandating KYC norms for freight forwarders during the relevant period. The decision favored the appellant, setting aside the penalties imposed by the impugned order.