2017 (11) TMI 948 - HC - Customs

Penalty - undervaluation - Whether the Tribunal erred in confirming penalty on the Appellant for undervaluation who acted as an agent for foreign supplier M/s. IJIMASIA having no role in price negotiation? - Held that - the present Appellant was a mastermind of entire act of undervaluation done by M/s. Sachha Soudha Pedhi - he was a key person as intending agent to plan out the entire modus operandi of undervaluation in respect of goods imported from M/s. IJIMASIA Pte. Limited - The Appellant being a abettor of evasion of duty and a key person and mastermind behind undervaluation, the penalty cannot be set aside - appeal dismissed - decided against appellant.

Issues:
- Imposition of penalty under Section 112(a) of the Customs Act, 1962
- Confirmation of penalty for undervaluation on the Appellant acting as an agent for a foreign supplier
- Confirmation of the charge of "abetment" for undervaluation in absence of cogent evidence

Analysis:
1. Imposition of Penalty under Section 112(a) of the Customs Act, 1962:
The Appellant challenged the Tribunal's order imposing a penalty under Section 112(a) of the Customs Act, 1962. The Appellant contended that they were neither the importer nor involved in the actual transaction but acted as an intending agent. It was argued that the Appellant had no role in price negotiation and, therefore, should not be penalized under Section 112(a). The Appellant's counsel emphasized that the provisions of the statute should not have been used to impose penalty liability on the Appellant, especially considering the Appellant's limited role in the transaction. However, the Tribunal found the Appellant to be a key person and mastermind behind the undervaluation scheme, dismissing the argument that the Appellant was not directly involved in the transaction.

2. Confirmation of Penalty for Undervaluation on the Appellant as an Agent:
The Tribunal's order observed that the Appellant played a crucial role as an intending agent in planning the undervaluation scheme for goods imported from a foreign supplier. Despite the Appellant's claim of being a mere agent without involvement in price fixation, the Tribunal established through submissions and recovered documents that the Appellant was instrumental in orchestrating the undervaluation. The Tribunal's decision to impose a penalty on the Appellant for abetting the evasion of duty and being a key figure in the undervaluation process was upheld, rejecting the Appellant's defense regarding their limited role.

3. Confirmation of "Abetment" Charge for Undervaluation without Cogent Evidence:
One of the substantial questions of law raised was whether the Tribunal erred in confirming the charge of "abetment" against the Appellant for undervaluation in the absence of cogent evidence. Despite the Appellant's argument that there was no concrete evidence linking them to the undervaluation scheme, the Tribunal's order considered the Appellant as the mastermind behind the undervaluation, based on recovered documents and submissions. The Tribunal's conclusion that the Appellant was actively involved in abetting the undervaluation and was a key person in the scheme led to the dismissal of the plea challenging the abetment charge.

In conclusion, the High Court dismissed the appeal, stating that no substantial question of law arose based on the detailed analysis of the Appellant's involvement in the undervaluation scheme and the imposition of penalties under Section 112(a) of the Customs Act, 1962. The Court upheld the Tribunal's decision regarding the Appellant's role as an abettor and key figure in the undervaluation process, emphasizing the Appellant's active participation despite their claim of being a mere agent.

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