2017 (7) TMI 153 - AT - Customs

Penalty u/s 112 (a) of Customs Act, 1962 - Duty Exemption Entitlement Certificate (DEEC) scheme - actual user condition - appellant allegedly diverted the duty-free imports into the local market without utilising it for manufacture of export products as stipulated in the conditions preescribed in the notification granting exemption - Held that - A careful reading of the provision makes it clear that penalty can be visited upon those who directly or indirectly have aught to with the goods that were confiscated. It is clear from the impugned order that the confiscation is a consequence of the diversion of the imported goods in contravention of the conditions of the exemption notification. The diversion of imported goods was enabled by the obtaining of the licence under false pretence and the arrangements that led to procurement of the offending goods. The impugned order, establish the connection of the appellants with the goods that were held liable for confiscation - Section 112 of Customs Act, 1962 prescribes the imposition of penalty for any act that may, directly or indirectly, have contributed to the confiscation of the goods. Penalty upheld - appeal dismissed - decided against appellant.

Summary

Issues:
Penalties imposed under section 112(a) of Customs Act, 1962 for diversion of duty-free imports. Allegations against individuals for facilitating misuse of advance licences and diversion of goods. Interpretation of section 112(a) for imposition of penalties. Applicability of Tribunal and High Court decisions in penalty cases.

Analysis:
The judgment deals with penalties imposed under section 112(a) of the Customs Act, 1962 on individuals involved in the diversion of duty-free imports. The penalties were a consequence of proceedings against a company that allegedly diverted imports meant for export into the local market. The appellants were penalized for their roles in facilitating this diversion. One appellant was faulted for using his office address as a cover for issuing fabricated certificates, while the other appellant was involved in purchasing bills of lading enabling the diversion. The impugned order linked the appellants' actions to the confiscation of goods due to diversion, as per the conditions of the exemption notification.

The judgment emphasizes that penalties under section 112(a) can be imposed on those directly or indirectly involved with goods liable for confiscation. It highlights the role of the appellants in enabling the diversion through false pretenses and facilitating transactions that allowed the goods to be routed improperly. The judgment clarifies that acts contributing to the confiscation of goods, even indirectly, can lead to penalties under this provision.

Regarding the applicability of previous decisions, the judgment acknowledges citations of Tribunal and High Court decisions but concludes that they do not support the appellants' claims. It underscores that the imposition of penalties under section 112 of the Customs Act is based on factual determinations of acts impacting the clearance process of imported goods. The judgment asserts that the facts presented in the impugned order establish the appellants' connection to the confiscated goods, leading to the dismissal of their appeals.

In conclusion, the judgment upholds the penalties imposed on the appellants for their involvement in the diversion of duty-free imports, as per the provisions of section 112(a) of the Customs Act, 1962. The decision underscores the importance of factual connections to confiscated goods in determining liability for penalties and highlights the limited scope of previous decisions in interpreting penalty laws.