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2018 (5) TMI 450 - AT - CustomsPenalty u/s 112(a) of Customs Act, 1962 - bogus and forged DEPB License - Held that - There is nothing brought out from records that the appellant had indulged in any conscious act while dealing with the DEPB scrips. The department has failed to establish that the appellant had prior knowledge that the DEPB scrips / license were fraud at the time of transfer of such scrips by him to the importer. Further, the immediate reaction of the appellant in reimbursing the money received itself would show that he had no knowledge of the fake nature of the scrips. In fact, we have to say that the appellant has become a victim of the dealings as he did not know about the fake nature of the scrips. The penalties imposed on the appellant cannot sustain - Appeal allowed - decided in favor of appellant.
Issues:
1. Settlement of case before Settlement Commission affecting co-noticees. 2. Liability of appellant as a broker in fraudulent use of DEPB license. 3. Requirement of mens rea for penalty under section 112(a) of Customs Act, 1962. Issue 1: Settlement of case before Settlement Commission affecting co-noticees The appellant argued that since the main importer and others settled the matter before the Settlement Commission, the penalty imposed on the appellant should not stand. The appellant relied on the decision in S.K. Colombowala Vs. Commissioner to support this contention. However, the respondent contended that the decision in KI International Ltd. case held the S.K. Colombowala decision to be per incuriam. The Tribunal in the KI International case observed that the Settlement Commission's order does not settle the dispute for other co-noticees who did not approach the Settlement Commission. The Tribunal declined to answer the reference, giving the appellant liberty to pursue the appeal on merits. Issue 2: Liability of appellant as a broker in fraudulent use of DEPB license The appellant argued that they were unaware of the fraudulent nature of the DEPB license and only learned about it later when informed by the importing company and their agent. The appellant promptly repaid the money received to avoid police action. The appellant claimed innocence and stated that they were implicated only for acting as a broker in the transfer of the alleged fake DEPB license. The department failed to establish the appellant's connivance in the forgery. The appellant cited the decision in CC Vs. Sanjay Agarwal, where the court held that a penalty cannot be imposed on a broker for mere involvement in the transfer of a license in the normal course of business without evidence of direct involvement in forgery. Issue 3: Requirement of mens rea for penalty under section 112(a) of Customs Act, 1962 The respondent argued that the appellant, as a broker for the DEPB license transfer, was liable for penalty under section 112(a) of the Customs Act, 1962, regardless of mens rea. The respondent contended that even without mens rea, attempting to use the DEPB for wrongful gain incurs liability for penalty. However, the Tribunal found that there was no evidence to establish the appellant's conscious involvement in the fraudulent use of the DEPB license. The Tribunal noted that the appellant promptly reimbursed the money upon learning about the fraud, indicating their lack of knowledge about the fake nature of the scrips. Relying on the decision in CC Vs. Sanjay Agarwal, the Tribunal concluded that the penalties imposed on the appellant were not sustainable and set them aside. In conclusion, the Tribunal allowed the appeals, setting aside the penalties imposed on the appellant due to lack of evidence establishing their conscious involvement in the fraudulent use of the DEPB license and their prompt actions upon learning about the fraud.
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