2009 (5) TMI 146 - AT - Customs

Penalty imposed on the appellant under Section 114(iii) of the Customs Act. The appellant was working as Data Entry Operator at Customs Freight Station (CFS) located at Nhava Sheva allegation is that he abetted in drawback fraud - I am unable to sustain the above penalty inasmuch as the appellant has been penalised for the offence of abetment without there being any finding against the main offenders, namely, the exporter-firm and its partners. The impugned order expressly states that the firm and its partners are rot traceable and therefore proceedings against them are kept in abeyance. There can be no finding of abetment of any offence without a clear finding of such offence against the main offender

Summary

Issues:
Penalty imposed under Section 114(iii) of the Customs Act on the appellant for alleged abetment of fraud in drawback claim by M/s. Shiv Shakti Overseas.

Analysis:
The appeal challenges a penalty imposed on the appellant under Section 114(iii) of the Customs Act for his alleged involvement in a fraud case related to drawback claims by M/s. Shiv Shakti Overseas. The appellant, an employee of M/s. V.V. Enterprises, worked as a Data Entry Operator at a Customs Freight Station (CFS) during the material period. The Central Intelligence Unit found that M/s. Shiv Shakti Overseas had claimed undue drawback in export goods, with the appellant responsible for data entry operations on shipping bills. The Commissioner's order re-determined the FOB value of the goods, confiscated them, disallowed the drawback amount claimed, and imposed penalties on various individuals, including the appellant.

The Commissioner's order re-determined the FOB value of the goods covered by 13 shipping bills, confiscated them, and disallowed the drawback amount claimed by M/s. Shiv Shakti Overseas. The order also imposed penalties on different individuals involved in the case, including the appellant. The penalties were imposed under Section 114(iii) of the Customs Act, with varying amounts for different individuals based on their roles in the fraudulent exports. However, the order explicitly mentioned that penal actions against the main offenders, namely the exporter-firm and its partners, were kept in abeyance as they were not traceable at that time.

The appellant's appeal contested the penalty imposed on him, arguing that he was penalized for abetment without any findings against the main offenders, i.e., the exporter-firm and its partners. The appellate authority agreed with this argument, stating that there cannot be a finding of abetment without a clear finding of the offense against the main offender. Therefore, the penalty imposed on the appellant was set aside, and his appeal was allowed, with the directive that he could be proceeded against along with the exporters in the future legal proceedings. The judgment emphasizes the importance of establishing the primary offense before penalizing individuals for abetment in such cases.

This detailed analysis of the judgment showcases the legal intricacies involved in the case, including the imposition of penalties under the Customs Act, the role of the appellant in the fraudulent exports, and the necessity of establishing the primary offense before penalizing individuals for abetment. The judgment highlights the need for clear findings against the main offenders in cases of alleged abetment to ensure fair and just legal proceedings.