2016 (3) TMI 336 - AT - Customs

Imposition of penalty - Under Section 112(a) of the Customs Act, 1962 - Appellant on request introduced one CHA to M/s FIL and acted as coordinator for forwarding the documents received from importer i.e. M/s FIL to such CHA which results in involving him in aiding and abetting in diversion of the imported garlic into the local market which was supposed to be re-exported after processing - Held that - the role of the appellant is not restricted to introduction of the parties but have actively assisted M/s. FIL and its directors in diversion of the goods in the local market which were supposed were processed and the exported. But in view of absence of any finding as to consideration received by the appellant for assisting the main accused and also in absence of any finding as to any role of appellant in export of the clay powder in the guise of garlic powder, the penalty is being reduced from ₹ 5000/- to ₹ 2000/-. - Decided partly in favour of appellant

Summary

Issues: Penalty under Section 112(b) of the Customs Act for abetting diversion of duty-free imported goods in the local market.

Analysis:
1. The appellant, aggrieved by the penalty imposed under Section 112(b) of the Customs Act, challenged the Order-in-Original passed by the Commissioner of Customs. The appellant was involved in coordinating the clearance and storage of imported garlic for M/s. Frost International Ltd., aiding in diversion of duty-free goods in the local market.

2. The appellant's role included introducing a Clearing House Agent (CHA) for clearance, arranging storage, and facilitating delivery of imported garlic. The Revenue initiated an inquiry for alleged misuse of advance license by M/s. Frost International Ltd. The appellant was accused of abetting in the illegal diversion of duty-free goods for profit, leading to the penalty under Section 112(b) of the Customs Act.

3. The Order-in-Original observed that the main company and its directors settled the dispute by approaching the settlement commission. However, as the appellant challenged the allegations, the case was referred back for adjudication. The appellant's involvement in aiding the diversion of imported garlic was confirmed during the settlement application by Frost International Ltd., resulting in the penalty imposition.

4. The appellant appealed to the Tribunal, arguing that the impugned order lacked valid findings on submissions, and the settlement by the main persons should have included the appellant's status. The appellant contended that the Commissioner misinterpreted legal precedents and failed to establish malafide intent on the appellant's part. The appellant acted as a facilitator without receiving consideration or profits, thus challenging the penalty under Section 112(b) of the Act.

5. The Tribunal considered the contentions and found that the appellant actively assisted in diverting goods meant for export into the local market. However, due to the absence of evidence regarding consideration received by the appellant and any role in exporting clay powder as garlic powder, the penalty was reduced to &8377; 2000, acknowledging the appellant's reduced culpability in the scheme.

6. In conclusion, the Tribunal partially allowed the appeal, reducing the penalty imposed under Section 112(b) of the Customs Act to &8377; 2000, considering the appellant's role in aiding the diversion of duty-free imported goods while mitigating factors such as lack of evidence of personal gain or direct involvement in the export scheme.