2015 (8) TMI 140 - AT - Customs

Penalty u/s 114 for abetment - Misdeclaration of goods - Held that - Appellant has confessed in his statement under Section 108 ibid that he contacted Shri Sanjiv Rana to get IE code of a reputed company to export the impugned goods. He was aware that the impugned goods were not auto parts as he had a role in their transport and packing. The impugned goods have been confirmed to be prohibited for exports under the Antiquities & Art Treasure Act, 1972. The statements of Shri Rajiv Gupta and Shri Mukesh Rana, even if arguably not admissible as evidence in the absence of cross-examination, clearly corroborate the appellant s own statement which further adds to the credibility of his (i.e., the appellant s) statemen). It is, thus, obvious that the appellant was fully aware of the illegal nature of the goods attempted to be exported and the mis-declaration thereof. In the light of the foregoing analysis, I am of the view that the appellant is guilty of abetment of the attempted to export which attracts penalty under Section 114 of the Customs Act, 1962. Having regard to the fact and the role played by the appellant in the attempted illegal export and the nature of the impugned goods, I find that the penalty imposed is neither excessive nor arbitrary or perverse. Therefore, I do not find any reasonable ground warranting appellate intervention in the impugned order - Decided against the appellant.

Summary

Issues:
1. Imposition of penalty under Section 114 of the Customs Act, 1962 read with Section 4 of the Antiquities & Art Treasure Act, 1972 for attempted export of mis-declared goods.
2. Appellant's defense of being an employee and unaware of the illegal nature of the export.
3. Reliability of co-accused statements and corroborative evidence.

Analysis:

1. The judgment revolves around the imposition of a penalty on the appellant for his involvement in the attempted export of 12 terracotta panels mis-declared as gear cutting machine parts. The consignment was booked under a false name, and the appellant was found to be instrumental in the process of preparing the goods for export. The appellant's role in abetting the attempted illegal export is established through his actions and involvement in the packing and transport of the prohibited goods.

2. The appellant argued that he was merely an employee following his employer's instructions and was unaware of the illegal nature of the export. However, the appellant's admission in his statement under Section 108 of the Customs Act revealed his active participation and knowledge of the mis-declaration. The appellant's claim of being a mere messenger or carrier of the goods was refuted based on his direct involvement in the process and awareness of the true nature of the goods.

3. The reliability of co-accused statements and corroborative evidence was a point of contention. The Departmental Representative highlighted the appellant's interaction with another individual to obtain an IE code for the export, indicating his awareness of the illegal activity. Despite the argument against relying on co-accused statements, the judge found that these statements, along with the appellant's own admission, supported the conclusion of the appellant's guilt in abetting the illegal export.

In conclusion, the judgment upheld the penalty imposed on the appellant under Section 114 of the Customs Act, 1962, considering his active involvement and awareness of the attempted illegal export. The judge found no grounds for appellate intervention, deeming the penalty neither excessive nor arbitrary. The dismissal of the appeal signifies the court's affirmation of the original order imposing the penalty on the appellant.