2023 (3) TMI 955 - AT - Customs

Levy of penalty u/s 112(a) and 114AA of Customs Act - mis-declaration of imported goods - fire crackers, total valued at Rs. 44,47,200/- - prohibited goods - case of appellant is that he himself is the victim of fraud by his employer Hemant Gandhi and his associates who used his name, photograph and identity for obtaining unknown numbers without his knowledge - HELD THAT - This appellant was mostly acting at the instructions of his employer Mr. Hemant Gandhi. Further it appears from the facts and circumstances and the evidence on record that this appellant was not aware that fire crackers (restricted goods) are being imported under the guise of E-glass of spec chopped strand mat (B-grade). However, it appears that this appellant had some inkling that Mr. Hemant Gandhi is resorting to dubious means or unethical practice, as he instructed the appellant to represent himself as Niting Chadda instead of Nitin Gandhi before the CHA. Further, Hemant Gandhi had promised to give Rs. 20,000/- per container to the person who will allow import in their name by using their IEC. Thereafter, this appellant contracted Mr. Roshan Singh and arrange for the use of his IEC in the name of Roshan Singh and Company, for which this appellant promise to give Rs. 10,000/- per container to Mr. Roshan Singh and thus was making Rs. 10,000/- per container out of the amount of 20,000/-. In this view of the matter, it is evident that this appellant was also receiving 10,000/- for making the arrangement for import through Mr. Roshan Singh. It is further found that this appellant have not resorted to use of any documents knowing it befalls or forged. The penalty under Section 114AA is set aside and the penalty under Section 112(a) is reduced to Rs. 1 lakh. Appeal allowed in part.

Summary

Issues Involved:
1. Imposition of penalty under Section 112(a) of the Customs Act.
2. Imposition of penalty under Section 114AA of the Customs Act.

Summary:

Issue 1: Imposition of Penalty under Section 112(a)
The appellant was an employee of Mr. Hemant Gandhi and was involved in the clearance of goods using the IEC code of Mr. Roshan Singh. The appellant facilitated the clearance of consignments, which were misdeclared as 'E-glass off Spec Chopped Strand Mat (B grade)' but were actually firecrackers. The DRI intercepted the containers and found the misdeclared goods, leading to their seizure. The appellant argued that he had no stake in the imports and was unaware of the illegal nature of the goods. However, the Tribunal found that the appellant was acting on the instructions of his employer and was aware of the dubious nature of the transactions, as he misrepresented himself and arranged for the use of Mr. Roshan Singh's IEC in exchange for money. Therefore, the penalty under Section 112(a) was justified but reduced to Rs. 1 lakh.

Issue 2: Imposition of Penalty under Section 114AA
The appellant contended that he was not aware of the illegal import of firecrackers and did not use any false or forged documents knowingly. The Tribunal agreed with the appellant, noting that there was no evidence to suggest that the appellant had knowledge of the restricted goods or had deliberately acted to defraud the customs department. Consequently, the penalty under Section 114AA was set aside.

Conclusion:
The appeal was allowed in part, with the penalty under Section 112(a) reduced to Rs. 1 lakh and the penalty under Section 114AA set aside. The impugned order was modified accordingly with consequential benefits.