2018 (2) TMI 1686 - AT - Customs

Penalty u/s 112(a) of the CA - allegation against the appellant is that they had colluded/ connived with the shipper in bringing Arecanut Betelnut Splits to India - Held that - Since both the authorities below had categorically recorded a finding that the appellant had neither connived nor colluded with the shipper or the importer in getting the cargo imported, therefore, imposition of penalty u/s 112(a) of the CA 1962 is unwarranted - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against order-in-appeal, Allegation of connivance and collusion, Penalty under Section 112(a) of the Customs Act, 1962

Analysis:
The appeal was filed against an order-in-appeal passed by the Commissioner of Customs (Appeals) Ahmedabad. The case involved a shipping line that transported cargo from Pakistan to India, imported by a company from an overseas supplier in Karachi. The importer failed to clear the goods, leading to a request to re-consign the goods. However, upon examination, it was found that the cargo was of Indonesian origin, misusing the SAFTA agreement. A Show Cause Notice was issued, alleging misdeclaration and proposing confiscation of the goods with a penalty under Section 112(a) of the Customs Act. The goods were confiscated, and a penalty of Rs. One Lakh was imposed, which was later reduced to Rs. 25,000 on appeal.

The appellant contended that the penalty was imposed erroneously as there was no connivance or collusion with the shipper or importer, beyond the scope of the allegations in the Notice. The appellant referred to a judgment of the Hon’ble Gujarat High Court to support their argument. The Revenue argued that the penalty was reduced considering the appellant's role and involvement in the matter.

The Ld. Commissioner (Appeals) found that there was no malafide intention on the part of the appellant and no evidence of connivance or collusion. The appellant had filed for re-export as per the shipper's request due to non-payment by the importer, without involvement in misdeclaration or misuse of exemptions. Despite reducing the penalty, the appellant argued that the imposition of penalty under Section 112(a) was unwarranted based on the findings that there was no connivance or collusion.

The Tribunal, after analyzing the facts and evidence, agreed with the appellant that the penalty under Section 112(a) cannot be sustained without specifying other circumstances. Therefore, the appeal was allowed, and the penalty was set aside.

This judgment highlights the importance of establishing connivance or collusion before imposing penalties under the Customs Act and emphasizes the need for specific circumstances to support such penalties.