2024 (12) TMI 172 - AT - Customs

Absolute confiscation - areca nuts - abondonment of goods - denial of benefit u/s 23 of the Customs Act, 1962 only on the ground that it appears to be an afterthought - HELD THAT - It is undisputed fact in the present case that the goods (areca nuts) are absolutely confiscated by the revenue authorities. In such circumstances, the demand of duty on the Appellants is not sustainable. Similar question arose before the Division Bench of this tribunal in case of Maiden Trading Co. Pvt. Ltd. 2015 (7) TMI 925 - CESTAT NEW DELHI wherein it is observed ' as the appellant has not filed any Bill of Entry neither placed order for supply of the impugned goods to the supplier/exporter, the penalty under Section 112(a) of the Customs Act is not imposable on the appellant.' The demand of duty is not sustainable on the Appellants as goods are absolutely confiscated. Penalty u/s 114A of the Customs Act, 1962 - HELD THAT - Section 114A deals with situations of intentionally making or using any declaration, statement or document which is false or incorrect in the transaction of any business for the purpose of Customs Act, 1962. The said Section is intended to penalize situation where there are paper transaction without any actual import or export of goods. In the present case, the revenue department has no case that the transaction was a paper transaction and that no goods were imported by the Appellant and therefore, we hold that penalty under Section 114A is not attracted. Penalty imposed on the partners of the Appellant firm - HELD THAT - The same is not sustainable for the reason that the penalty was proposed to be imposed on the Appellant partnership firm. Reliance placed on the decision of Hon ble Gujarat High Court in case of CCE Vs. Jai Prakash Motwani 2009 (1) TMI 501 - GUJARAT HIGH COURT wherein it is observed that ' Admittedly, a partner is not a separate legal entity and cannot be equated with the employees of a firm. Once the firm has already been penalized, separate penalty cannot be imposed upon the partner. The impugned order of the Tribunal does not suffer from any legal infirmity so as to warrant interference. In the absence of any substantial question of law, the appeal is dismissed.' - the penalty imposed on all the partners of the Appellant firm set aside. All the appeals filed by the Appellants are allowed.

Issues Involved:
1. Imposition of customs duty and penalty on the appellant due to misdeclaration of imported goods.
2. Absolute confiscation of goods and the applicability of Section 23 of the Customs Act, 1962 regarding abandonment.
3. Imposition of penalty under Section 114A of the Customs Act, 1962 on the appellant firm.
4. Imposition of penalty on the partners of the appellant firm.
5. Imposition of penalty on the employees of the Customs House Agent (CHA) firm.

Issue-wise Detailed Analysis:

1. Imposition of Customs Duty and Penalty:
The core issue was the imposition of customs duty and penalty on the appellant, M/s. SKA Cashew Processing LLP, for the alleged misdeclaration of imported goods. The appellant had ordered raw cashew nuts, but the consignment included areca nuts, which were not declared. The tribunal found that since the goods were absolutely confiscated, the demand for duty was not sustainable. The tribunal referenced a precedent where it was held that if goods are confiscated, the demand for duty does not stand, as the ownership of the goods rests with the government post-confiscation.

2. Absolute Confiscation and Section 23 of the Customs Act:
The appellant had abandoned the goods through a letter dated 17.05.2023, which was initially denied by the Principal Commissioner as an afterthought. However, the tribunal held that under Section 23(2) of the Customs Act, an importer has the right to abandon goods before clearance, which exempts them from the duty liability. The tribunal cited a previous case where it was established that abandonment is permissible if done before clearance, and no duty can be demanded thereafter.

3. Penalty Under Section 114A of the Customs Act:
The tribunal examined the imposition of a penalty under Section 114A, which pertains to false declarations or documents in customs transactions. It was concluded that the penalty was not applicable as there was no evidence of a paper transaction or intent to mislead customs authorities. The tribunal referred to a similar case where penalties under Section 114AA were not imposed due to the absence of fraudulent intent or misdeclaration by the importer.

4. Penalty on Partners of the Appellant Firm:
The tribunal set aside the penalties imposed on the partners of the appellant firm. It was noted that imposing penalties on both the partnership firm and its partners is not permissible, as a partnership firm is not a separate legal entity from its partners. The tribunal relied on precedents where it was held that penalties on a firm inherently cover its partners, and separate penalties are redundant and legally unsustainable.

5. Penalty on Employees of the CHA Firm:
The tribunal also set aside the penalties imposed on the employees of the CHA firm. It was determined that there was no specific evidence or findings attributing any mala fide intent or misstatement by the employees. Without concrete evidence of wrongdoing, the imposition of penalties on the employees was deemed unjustified.

Conclusion:
The tribunal allowed the appeals filed by the appellants, setting aside the customs duty, penalties on the appellant firm, its partners, and the employees of the CHA firm. The tribunal's decision was based on the principles of abandonment under Section 23, the lack of fraudulent intent, and the legal interpretation of penalties on partnership firms and their partners. The judgment emphasized the necessity of concrete evidence for imposing penalties and upheld the appellants' rights under the Customs Act, 1962.

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