2018 (3) TMI 1254 - AT - Customs

Penalty u/s 114 of CA, 1962 - mis-declaration of goods - restricted item - Held that - apparently, the appellant can be brought under the category of abettor only. For such allegation, positive evidence of act with knowledge has to be ascertained in the present case. No such evidence is brought out in the present case. Whatever allegation could be inferred is against violation of CHALR, 2004 and lack of due diligence by the CHA. Such alleged lack of due diligence has been fastened on the appellant as a CHA - such allegation is not legally sustainable. His role as an abettor of improper act or omission has not been evidenced. Penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues: Liability of the appellant for penalty under Section 114 of the Customs Act, 1962.

Detailed Analysis:
1. Background: The appellant, a manager of a CHA firm, was involved in a case of improper export of restricted items mis-declared as something else. The Original Authority imposed a penalty of &8377; 5 lakhs on the appellant under Section 114 of the Customs Act, 1962.

2. Appellant's Defense: The appellant's counsel argued that the appellant, as a paid employee, was not involved in the mis-declaration by the exporter and should not be held liable. The counsel highlighted that no investigation was initiated against the CHA by the officers.

3. Revenue's Argument: The Revenue contended that the appellant, as a responsible employee of the CHA, could be penalized for attempting to export restricted items improperly.

4. Court's Examination: The Tribunal examined the case record and focused on the liability of the appellant under Section 114 of the Customs Act, 1962. The relevant provisions of the Act were cited to determine the penalty.

5. Legal Analysis: The Tribunal noted that while the exporters were penalized and goods confiscated, no action was taken against the CHA. The Tribunal found it surprising that only the appellant, an employee of the CHA, was penalized without investigating the CHA's role. The Tribunal emphasized the lack of evidence showing the appellant's involvement as an abettor in the improper export.

6. Conclusion: The Tribunal set aside the penalty imposed on the appellant, citing the lack of evidence to establish his role as an abettor. It was deemed that the allegations of lack of due diligence and violation of CHALR, 2004 by the CHA were incorrectly attributed to the appellant. The appeal was allowed, and the impugned order regarding the penalty on the appellant was overturned.