2025 (2) TMI 908 - AT - Customs

Imposition of penalties u/s 114(i) 114(iii) and 114AA of the Customs Act 1962 - Siphoning off duty drawback from the exchequer by export of inferior quality of readymade garments at highly overvalued price - HELD THAT - There is no denial of the Revenue that appellant obtained all the requisite documents vis- -vis the identity and the place of existence by verifying said KYC documents with the respective departments. It is also observed that all the consignments were allowed to be exported after scrutiny of the documents which were filed along with shipping bills. Even the physical examination of the goods was conducted without any objection been raised at the time of clearance of the export consignment neither with respect to the quality nor the value of the exported garments. There is also no denial to the fact that with respect to the impugned exports the appellant filed eight shipping bills on behalf of M/s. Kenstar Overseas and six shipping bills on behalf of M/s. Alpha Impex in the month of May-June 2009 - Apparently and admittedly the impugned show cause notice was issued on 19.05.2015 i.e. six year after the impugned export consignments got cleared by the appellant. There are no denial of Shri Vinod Kumar Mulani the beneficial owner of the exports who is the alleged mastermind behind the fictitious firms fraudulently exporting the inferior quality of garments to receive ineligible duty drawback that the appellant was authorized to clear the impugned export consignments. This Tribunal in the case of M/s. Mauli Worldwide Logistics Vs. Commissioner of Customs New Delhi (Airport and General) 2022 (7) TMI 368 - CESTAT NEW DELHI has also held that the fact that appellant had carried out due diligence is consistent with the fact that the KYC documents were obtained by him as CHA and were submitted by him before the Commissioner. Same is the fact of the present case. Hence the decision is squarely applicable in the present case also. Hon ble Delhi High Court in the case of Kunal Travels 2017 (3) TMI 1494 - DELHI HIGH COURT has held that the CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect of clearance of goods through customs house - all CHA need not to sit as an examiner or supervisor to such authorities issuing the documents to the importer/exporter as the case may be. Even the CHALR Regulations do not expect the CHA to physically examine the genuineness vis- -vis the identity of his client and his existence at the address mentioned on the documents which are otherwise being verified by CHA as genuine. The onus of CHA therefore cannot be extended to verify that the officers issuing those documents/certify/registration whether or not have correctly issued the same. There is no evidence produced by the department to prove the allegations of lack due diligence on part of the CHA nor of abatement in impugned illegal exports. There is not even any evidence on record to prove that the appellant had derived any benefit out of alleged violation by the exporters or out of availment of ineligible drawback - There is no corroboration to that effect despite the department had done a meticulous enquiry with the banks of the exporter firms but no single documentary evidence could have been produced showing any remittance to the appellant out of the amounts received by those firms in the name of duty drawbacks. Conclusion - In absence of any evidence to support the allegations of the show cause notice against the appellant the penalty against the appellant has wrongly been imposed. Appeal allowed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment include:

• Whether the appellant, a Customs House Agent (CHA), failed to exercise due diligence as prescribed under the Customs House Agents Licensing Regulations, 2004 (CHALR, 2004), thereby facilitating fraudulent exports by accepting work and documents for customs clearance from non-existent firms.
• Whether the appellant was involved in or abetted the fraud committed by Shri Vinod Kumar Mulani, who allegedly created fictitious firms to fraudulently avail duty drawbacks from the government.
• Whether the penalties imposed on the appellant under Sections 114(i), 114(iii), and 114AA of the Customs Act, 1962, were justified.

ISSUE-WISE DETAILED ANALYSIS

Failure to Exercise Due Diligence by the CHA

• Relevant legal framework and precedents: The Customs House Agents Licensing Regulations, 2004, outline the obligations of CHAs, including the requirement to exercise due diligence in verifying the authenticity of their clients and the documents provided by them.
• Court's interpretation and reasoning: The Tribunal observed that the appellant had obtained and verified all requisite documents such as Importer Exporter Codes (IECs), PAN cards, and other identification documents from the respective government departments. The Tribunal noted that the appellant had complied with the due diligence requirements under CHALR, 2004.
• Key evidence and findings: The appellant had verified the KYC documents through the respective department websites, and the exporting firms were found to be duly registered and existent at the given addresses.
• Application of law to facts: The Tribunal found that there was no evidence to prove that the appellant was aware of the fictitious nature of the exporting firms or that the goods were overvalued. The appellant had acted based on the documents provided, which were verified as genuine.
• Treatment of competing arguments: The Department argued that the appellant failed to meet the proprietors of the exporting firms and accepted documents from unauthorized persons. However, the Tribunal found no evidence of any requirement under CHALR for physical verification of exporters by the CHA.
• Conclusions: The Tribunal concluded that the appellant had exercised due diligence as required under CHALR, 2004, and the allegations of negligence were unfounded.

Involvement in or Abetment of Fraud

• Relevant legal framework and precedents: Under the Customs Act, 1962, abetment involves instigating, conspiring, or intentionally aiding in the commission of an offense.
• Court's interpretation and reasoning: The Tribunal noted the absence of evidence to prove that the appellant had any prior knowledge or was involved in the fraudulent activities of Shri Vinod Kumar Mulani.
• Key evidence and findings: The appellant had filed shipping bills based on documents provided by the exporters, which were verified as genuine. There was no evidence of any financial benefit derived by the appellant from the fraudulent activities.
• Application of law to facts: The Tribunal found that the appellant's actions did not meet the legal threshold for abetment, as there was no evidence of intentional assistance or conspiracy in the fraud.
• Treatment of competing arguments: The Department argued that the appellant facilitated the fraud by accepting documents from unauthorized persons. However, the Tribunal found no corroborative evidence of such facilitation or any financial gain by the appellant.
• Conclusions: The Tribunal concluded that the appellant was not involved in or abetted the fraudulent exports and the allegations were unsupported by evidence.

Justification of Penalties Imposed

• Relevant legal framework and precedents: Penalties under Sections 114(i), 114(iii), and 114AA of the Customs Act, 1962, are imposed for acts or omissions rendering goods liable for confiscation and for abetment of such acts.
• Court's interpretation and reasoning: The Tribunal found that the penalties were imposed without sufficient evidence of the appellant's involvement or negligence in the fraudulent activities.
• Key evidence and findings: The Tribunal noted the lack of evidence proving any direct involvement or benefit derived by the appellant from the fraudulent exports.
• Application of law to facts: The Tribunal determined that the penalties were unjustified as the appellant had complied with the due diligence requirements and there was no evidence of abetment.
• Treatment of competing arguments: The Department's reliance on the appellant's failure to meet the proprietors of the firms was insufficient to justify the penalties, given the lack of evidence of any wrongdoing by the appellant.
• Conclusions: The Tribunal set aside the penalties imposed on the appellant, finding them to be unjustified and unsupported by evidence.

SIGNIFICANT HOLDINGS

• Preserve verbatim quotes of crucial legal reasoning: "The CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect of clearance of goods through customs house."
• Core principles established: CHAs are required to exercise due diligence by verifying documents through appropriate channels, but they are not obligated to physically verify the existence of exporters or importers. The burden of ensuring the genuineness of issued documents lies with the respective government authorities.
• Final determinations on each issue: The Tribunal concluded that the appellant had exercised due diligence, was not involved in or abetted the fraudulent activities, and the penalties imposed were unjustified. The impugned order was set aside, and the appeal was allowed.