2009 (8) TMI 204 - HC - Customs

Penalty for abetting in export of goods - in para 63 of the show cause notice the expression acts of omission and commission has been referred to insofar as the respondent herein is concerned in para 54 the respondent was specifically informed that the charge against him is of abetment. Once it is a case of abetment it was the appellant who had to prove the knowledge on the part of the respondent herein. - Tribunal while hearing the appeal placed reliance in respect of another show cause notice which was served on the respondent herein in similar circumstances. The learned Tribunal quoted a judgment of the Tribunal in the earlier case where a finding had been recorded that the respondent herein had no knowledge and accordingly dismissed the appeal. Appeal against such order on finding of fact dismissed Appeal is dismissed

Summary

Issues:
1. Show cause notice alleging abetment in exporting goods under Customs Act, 1962.
2. Tribunal's reliance on a previous judgment where respondent had no knowledge.
3. Interpretation of Section 114(3) of the Customs Act regarding omission and knowledge in abetment cases.

Analysis:
1. The respondent received a show cause notice accusing him of abetting in exporting goods liable for confiscation under Section 113(1) of the Customs Act, 1962, rendering him liable for penalty under Section 114(iii) of the Act. The appellant argued that the charge against the respondent was of abetment, shifting the burden of proving knowledge onto the appellant.

2. The respondent appealed the penalty imposed, citing a previous judgment where the Tribunal found the respondent had no knowledge in a similar case. The Tribunal, relying on this judgment, dismissed the appeal. However, the appellant highlighted Section 114(3) of the Customs Act, emphasizing that in cases of omission, the question of knowledge is irrelevant. The appellant argued that the previous judgment should not apply in this case.

3. The High Court, after hearing arguments, noted the discrepancy between the references to "acts of omission and commission" in the show cause notice. The Court emphasized that in the specific charge of abetment against the respondent, the burden of proving knowledge rested on the appellant. Considering the factual finding of the Tribunal regarding the respondent's knowledge, the Court concluded that the questions of law raised were not applicable, leading to the dismissal of the appeal. The Court's decision highlighted the importance of proving knowledge in cases of abetment under the Customs Act, 1962.