2015 (12) TMI 717 - AT - Customs

Imposition of penalty on a person treating as Importer - import of goods without the knowledge of such person - whether appellant is liable to penalty and whether he should be held to be the importer of consignments of zinc Flux Skimming s for which two bills of entry were filed by CHA M/s. R.N. Lal & Bros - Held that - appellant has denied to have imported the consignments for which bills of entry were filed by the CHA. The signatures on the bills of entry have been found to be not made by the appellant. Even the CHA who filed bills of entry has not implicated the appellant to have authorized him for filing the impugned bills of entry. There are few statements of Sh. Nanda Ganguly, Sh. Uttam Swarckar, a Sircar holder of CHA , Sh. Sunil Agarwal, a metal Trdev and Md. Fazlul Hoque to the effect that appellant was making certain enquires regarding transportation & importation of zinc Flux skimmings. Penalty under Sec - 112 of the Customs Act 1962 can be imposed only upon on importer or any person who claims himself to be an importer. Appellant has neither filed any bill of entry nor is he claiming the ownership of the imported goods. Circumstantial evidences discussed by the adjudicating authority only raise a suspicion about the appellant but it is a settled position of law now that suspicion howsoever grave can not take the place of an evidence. There is no evidence on record that appellant has signed the bills of entry and has given all the documents personally to the Customs House agent or any other person. Penalty can not be imposed upon the appellant on the basis of suspicion created by presumption & surmises by holding him to be the importer. - Decided in favour of appellant.

Issues:
1. Imposition of penalty of Rs. 20 lakh by Commissioner of Customs.
2. Lack of provision quoted in the order for penalty imposition.
3. Denial of importation by the appellant.
4. Question of liability for penalty and importer status.
5. Defense based on circumstantial evidence and lack of direct proof.
6. Applicability of case laws in support of the appellant's argument.
7. Examination of relevant legal principles for penalty imposition.
8. Decision on setting aside the penalty and allowing the appeal.

Analysis:

1. The appellant filed an appeal against a penalty of Rs. 20 lakh imposed by the Commissioner of Customs. The appellant's representative argued that the penalty lacked a specific provision from the Customs Act 1962 in the order. The appellant denied importing Zinc Flux Skimmings from Bangladesh and disclaimed authorization for filing bills of entry by a Customs House Agent (CHA).

2. The appellant's defense focused on the expired authorization from the Ministry of Environment & Forest, lack of knowledge about the import, and absence of authorization given to the CHA. The adjudicating authority's findings were challenged as based on presumption and surmises, lacking concrete evidence linking the appellant to the imported goods.

3. The issue revolved around determining the appellant's liability for the penalty and importer status regarding the consignments in question. The appellant neither filed any bill of entry nor claimed ownership of the goods, emphasizing the absence of direct involvement in the importation process.

4. The tribunal examined the circumstantial evidence and statements provided, noting the absence of the appellant's signatures on the bills of entry and the CHA's non-implication of the appellant in authorizing the entries. The tribunal emphasized that penalty under Section 112 of the Customs Act 1962 applies to importers or those claiming to be importers, which the appellant did not do.

5. The appellant cited various case laws to support the argument that no penalty should be imposed since the appellant was not the importer. The tribunal referenced case law precedents, including Narendra B. Jain Vs Commissioner of Customs, Mumbai, and Chemworld Inc. Vs Commissioner of Customs (Import), Nhava Sheva, to establish the legal principle that penalty cannot be imposed without clear evidence of importation or ownership.

6. Ultimately, the tribunal set aside the penalty imposed on the appellant, highlighting that suspicion, without concrete evidence, cannot substitute for proof in penalty imposition. The decision was based on the lack of direct involvement of the appellant in the importation process and the absence of compelling evidence linking the appellant to the imported goods.

7. The tribunal's ruling aligned with established legal principles and case law precedents, emphasizing the necessity of concrete evidence to impose penalties under the Customs Act. The decision to allow the appeal and set aside the penalty was based on the lack of substantive proof implicating the appellant as the importer, reinforcing the importance of clear evidence in penalty imposition cases.

This comprehensive analysis of the judgment highlights the key issues, arguments presented, legal principles applied, and the final decision reached by the tribunal.

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