2022 (9) TMI 1168 - AT - Customs

Levy of penalty u/s 112(b)(i) of the Customs Act, 1962 - mis-declaration of imported goods - attempt to clear the imported goods neither under the Customs Act nor under the specific provision invoked having made an offence - violation of IPR - Confiscation - enhancement of value - HELD THAT - It was the appellant claiming himself to be the importer who entered into the picture by introducing Mr. Haarif and also introducing the name of Mr. Devender Yadav, which facts were not at all disputed by the appellant anywhere, either in his reply or his explanations and hence, he is any person insofar as the provisions of Section 112 ibid. are concerned. When the appellant is in no way concerned with the goods in question, the very act on his part to get the same removed itself proves the mala fide intention on his part and therefore, the same is held to be sufficient to justify penalizing under Section 112(b)(i) ibid. This itself will sufficiently take care of the contentions urged on behalf of the appellant, by which the intention of the appellant stands clearly exposed inasmuch as he not only assumed the role of importer, but also was responsible for impersonation as an Import Staff. The appellant has repeatedly and merely claimed that there was nothing on record to evidence his role, other than the statement of Mr. Haarif (alias Saravana Balan), who is also a co-noticee, but he has never denied that Mr. Haarif was sent by himself. When this is not rebutted directly or indirectly, it is opined that this is a sufficient reason to suspect the motive and involvement of this appellant in attempting to clear the consignment knowing fully well that he is neither the owner nor the importer and that the goods in question did not belong to him. There is no dispute as to the fact that by virtue of there being an attempt to smuggle items contrary to the prevailing rules and regulations, the goods have become liable for confiscation and hence, have been confiscated within the meaning of Section 111(d) ibid., for the violations as indicated by the Adjudicating Authority paragraphs 41 (d), (e), (f) and (g) - appeal dismissed.

Summary

Issues:
Whether the authorities were correct in levying/confirming the penalty imposed on the appellant under Section 112(b)(i) of the Customs Act, 1962?

Analysis:
The appellant filed an appeal against the Order-in-Appeal passed by the Commissioner of Customs (Appeals-II), Chennai, questioning the penalty imposed under Section 112(b)(i) of the Customs Act, 1962. The appellant, a former Director of a licensed Customs Broker company, was involved in an incident where a container with mis-declared goods was intercepted by Customs authorities. The appellant argued that the penalty was unjustified as the goods were not cleared under the Customs Act and the container was confiscated. The appellant contended that the authorities exceeded their jurisdiction by presuming facts beyond the Show Cause Notice and lacked evidence to support the penalty. The appellant also disputed the involvement of others implicating him in the incident. However, the First Appellate Authority upheld the penalty, leading to the current appeal before the Tribunal.

The Tribunal analyzed the facts and contentions presented by both parties. It noted that a co-noticee impersonated an importer at the appellant's behest, indicating the appellant's involvement in attempting to clear the container. The appellant introduced another individual in the scheme, further implicating himself in the illicit activity. The mismatch between the declared and actual goods suggested an intention to smuggle counterfeit items, justifying the penalty under Section 112(b)(i) of the Customs Act, 1962. The Tribunal emphasized that the appellant's actions demonstrated a mala fide intention, as he assumed roles not belonging to him and engaged in impersonation. The Tribunal found the appellant's involvement sufficient to justify penalization under the relevant provision.

The Tribunal concluded that the attempted smuggling of counterfeit goods, coupled with the appellant's active participation in the scheme, warranted the penalty imposed under Section 112(b)(i) of the Customs Act, 1962. The Tribunal dismissed the appeal based on the evidence and circumstances of the case, distinguishing it from the precedents cited by the appellant. The decision was pronounced in open court, upholding the penalty against the appellant for his involvement in the illicit activity.