2021 (9) TMI 814 - AT - Customs

Levy of penalty u/s 114AA of Customs Act - illegal export of red sanders out of India - misuse of Import Export Code (IEC) - tampering with the evidences or not - reasonable suspicion as to the bona fides of the appellant or not - HELD THAT - As per Section 114AA of Customs Act, the confiscation of goods is not necessary, but the only requirement is the knowledge of the person. That means, the appellant in the case on hand against whom the liability is fastened must be aware as to what is happening right from the beginning. The Surveyor, who is not an interested party, has categorically opined that the container was in fact tampered with and surprisingly, it is not the case of the Revenue that it was the appellant who was responsible for the tampering with, as indicated by Shri M. Annamalai. It is not even the case of the Revenue that the appellant had acquaintance with the so-called mastermind i.e., Shri Ramesh which prompted the appellant to act in a reckless manner. Nor is it the case of the Revenue that the appellant had knowingly or intentionally signed any statement or document which was false. So also, the Revenue has failed to establish the mala fides of the appellant since nowhere has the Revenue alleged that the appellant was aware or had acted deliberately. The observation by a neutral party throws reasonable suspicion as to the bona fides of the appellant which alone is sufficient to doubt the knowledge or intention of the appellant, in order to attract the mischief under Section 114AA ibid. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Allegation of misuse of IEC code for smuggling Red Sanders logs.
2. Imposition of penalty under Section 114AA of the Customs Act, 1962.
3. Challenge against penalty imposition before the First Appellate Authority.
4. Interpretation of Section 114AA regarding penalty for false and incorrect material.
5. Examination of evidence regarding tampering with the container.

Analysis:
1. The case involved an allegation that the IEC holder allowed the misuse of the IEC code for smuggling Red Sanders logs. The container was recalled and confirmed to contain Red Sanders logs, prohibited for export. The appellant was accused of abetting the offense by not verifying the overseas buyers and allowing a fictitious firm to handle the export.

2. The penalty under Section 114AA of the Customs Act, 1962 was imposed on the appellant for his alleged involvement in the smuggling. The penalty amount was set at ?35,00,000 based on various acts of omission and commission by the appellant, rendering the goods liable for confiscation under different sections of the Customs Act.

3. The appellant challenged the penalty imposition before the First Appellate Authority and the Commissioner of Customs, but the appeal was rejected. Subsequently, the present appeal was filed before the Appellate Tribunal CESTAT Chennai.

4. The interpretation of Section 114AA was crucial in this case. The section imposes a penalty for knowingly or intentionally making false declarations or documents in the course of business under the Customs Act. The knowledge of the person involved is essential for the penalty to be applicable.

5. Evidence regarding tampering with the container was examined, where a neutral surveyor confirmed tampering but did not implicate the appellant. The surveyor's opinion raised doubts about the appellant's knowledge or intention in the smuggling operation. The tribunal found insufficient justification to sustain the penalty and set aside the impugned order, allowing the appeal.

This detailed analysis of the legal judgment highlights the key issues, arguments presented by both sides, relevant legal provisions, and the tribunal's decision in setting aside the penalty imposed under Section 114AA of the Customs Act, 1962.