2014 (11) TMI 490 - HC - Customs

Deletion of penalty by the tribunal where importer has not challenged the confiscation of goods - Misdeclaration of quantity - Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the levy of penalty imposed under Section 112(a) of the Customs Act, 1962 - Held that - In order to invoke Section 112(a) of the Customs Act, it is essential that a person, who .in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or in terms of clause (b) of Section 112 acquires possession of or is in any way concerned in carrying, removing, depositing, keeping, etc., any goods which he knows or has reason to believe are liable to confiscation under Section 111. The case would fall within the ambit of clause (a) of Section 112. The importer has not challenged the order of confiscation. In such event, penalty would stand attracted in terms of sub-clause (iii) under clause (b) which states that in the case of goods in respect of which the value stated in the entry made under the Act is higher than the value thereof, the importer is liable for penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees which ever is the greater. The Tribunal, did not assign any specific reason for cancelling the penalty but pointed out that in every case of enhancement of value it cannot lead to an inference of misdeclaration of value. However, this finding appears to be inconsistent with the facts since the importer has not challenged the order of confiscation, which has been confirmed by the Tribunal also, wherein there is a clear finding that the importer was not able to satisfactorily explain the huge difference in quantity. Therefore, Section 112(a)(iii) stands attracted - penalty of ₹ 10,000/- imposed - Decided partly in favour of Revenue.

Summary

Issues:
- Appeal against the levy of penalty under Section 112(a) of the Customs Act, 1962.

Analysis:
1. The respondent/importer declared a unit price for Tungsten Carbide Tips Cutting Tools, but the Department proposed an enhanced value based on contemporaneous prices. The importer accepted the enhanced value, but discrepancies were found during inspection, leading to excess quantity. The importer claimed the excess was dispatched by mistake. The adjudicating authority held the goods liable for confiscation and imposed a penalty under Section 112(a) of the Act. The Commissioner of Customs (Appeals) upheld the decision, emphasizing the importer's failure to provide evidence on pricing. The Tribunal confirmed confiscation but set aside the penalty due to lack of evidence on misdeclaration. The revenue appealed against the penalty's cancellation.

2. The High Court noted the importer's acceptance of the enhanced value and the Department's reliance on contemporaneous imports. The importer failed to prove negotiation for the lower price or the excess quantity's origin, leading to the Tribunal's confirmation of confiscation. The Court highlighted the importer's inability to challenge the confiscation order, making penalty imposition under Section 112(a)(iii) appropriate. The Tribunal's lack of specific reasoning for canceling the penalty was deemed inconsistent with the facts, justifying the imposition of a penalty of &8377; 10,000 by the Court.

3. Ultimately, the Court allowed the appeal in part, setting aside the Tribunal's decision and imposing a penalty of &8377; 10,000 on the importer. The Court considered the uncontested confiscation order, the importer's admission of the enhanced value, and the reduced redemption fine accepted by the Department. No costs were awarded in the judgment.