2000 (3) TMI 415 - AT - Central Excise

Summary

Issues:
- Imposition of penalty under section 112 of the Customs Act
- Allegations of mis-declaration and abetment by the Indian agent
- Reliance on a previous Tribunal decision
- Dispute regarding the split-up of commission and charges
- Lack of evidence of abetment in mis-declaration
- Decision on liability to penalty based on importer's knowledge

Imposition of Penalty:
The judgment pertains to two appeals against the Collector's order imposing penalties of Rs. 1 lakh each under section 112 of the Customs Act. The penalties were imposed due to alleged mis-declaration and abetment by the Indian agent in relation to commission payments.

Mis-Declaration and Abetment:
The appellant, acting as an agent for a manufacturer, received orders from importers for printing machines. The Collector found discrepancies in the declared commission amounts, with a portion labeled as charges for installation and technical advice. The Commissioner held the undisclosed commission liable to be included in the assessable value, attributing mis-declaration to the importer and abetment to the appellant.

Reliance on Previous Tribunal Decision:
The appellant relied on a previous Tribunal decision in a similar case to argue against liability to penalty. The Tribunal's earlier ruling in identical circumstances found no penalty liability on the appellant, which was emphasized by the appellant's representative in this case.

Dispute over Commission Split-Up:
The departmental representative highlighted the appellant's actions post-investigation, where a breakdown of the commission was provided to the importer. This was construed as abetment by the department. However, the judgment questioned the timing of the split-up, noting that the breakdown was part of the original purchase order and not fabricated later.

Lack of Abetment Evidence:
The judgment pointed out that if the importer was aware of the commission payment, there should be no abetment by the appellant. The Collector's records indicated that the commission details were known to the importer beforehand, shifting the responsibility to the importer to comply with the law.

Decision on Penalty Liability:
Ultimately, the Tribunal, considering the lack of evidence of deliberate non-disclosure or abetment, ruled in favor of the appellant. Citing the previous Tribunal decision and the timing of the commission details, the Tribunal held that the appellant was not liable for the penalties imposed, and the impugned order was set aside.

This comprehensive analysis covers the issues involved in the judgment, detailing the arguments, findings, and reasoning behind the Tribunal's decision.