2022 (10) TMI 644 - AT - Customs

Levy of penalty u/s 112 (a) (b) (iii) and 114A of the Customs Act, 1962 - importing rough precious stones by making huge overvaluation - goods not imported by actual importers but the imports are being managed by someone else behind them - overvaluation of goods - HELD THAT - The copy of IEC code is very much on record. The firm is otherwise registered for GST purpose as is apparent from the Certificate of Registration dated 27.07.2017. The Deed of Admission cum Retirement dated 12.1.2018/ Addendum to LLP agreement dated 10.2.2017 is perused. The perusal thereof reveals that it is a document between new partners and retiring partners of M/s.Rishipushp Trading LLP. The retiring partners of M/s.Rishipushp Trading LLP namely, Shri Pukhraj R Padiyar and Shri Rajendra Byawat have agreed for them to be substituted with new partners namely, Shri Hemant Kumr Bhmbi and Shri Dinesh Kumar Meghwanshi with the clear understanding that the importer LLP between the partner will continuing with effect from 10.2.2017 on same terms and conditions as are consistent in the deed of LLP. The penalty upon the appellant has been confirmed on the sole ground that the importer on record i.e. M/s.Rishipushp Trading LLP is not the actual importer. The actual importer is presumed to be Shri Pukhraj Ramdevji Padiyar and since Shri Pukhraj Ramdevji Padiyar is not IEC code holder and since this fact was known to the appellant, he deliberately ignored the same, thereby committing violation of his obligation as Customs Broker - The firm is holder of valid IEC. There is no dispute about their valid KYC documents. There is nothing on record that Shri Pukhraj R Padiyar was the actual importer. Thus, it is clear that the appellant has deliberately and intentionally has not provided any such information which was false or incorrect. As such, in my opinion that penalty under section 114AA of the Customs Act, 1962 has wrongly been imposed upon him. Penalty u/s 112 of Customs Act - HELD THAT - The penalty is the consequence to a wrong declaration of the value of the goods in the Bill of Entry. Since there is no denial that Bill of Entry were filed by the appellant, under his obligation it was mandatory for him to have the documents showing the value of imported consignment. Nowhere appellant has stated about the said document and the valuation thereof nor any such document in the form of invoice has been produced on record which would have been verified by the appellant at the time of processing of the impugned consignment. Accordingly, the penalty under section 112 of Customs Act has rightly been imposed. The penalty under section 114A of the Customs Act, 1962 is hereby set aside. However, penalty under section 112 (a) (b) (iii) is hereby confirmed - Appeal allowed in part.

Summary

Issues:
Penalty imposition under sections 112(a) & (b)(iii) and 114A of the Customs Act, 1962 on a Customs House Agent (CHA) for alleged involvement in overvaluation of rough precious stones import consignment and failure to fulfill obligations as a Customs Broker.

Analysis:

1. Alleged Overvaluation and Misdeclaration:
The case involved the import of rough precious stones with significant overvaluation, leading to suspicions of misdeclaration. The Department seized consignments due to the observed overvaluation, which triggered investigations into the actual importers behind the transactions. The appellant, a Customs Broker, was implicated for his role in facilitating the import process.

2. Obligations of Customs Broker:
The appellant argued that he fulfilled his obligations as a Customs Broker by working on behalf of the importing firm, M/s. Rishipushp Trading LLP, which held a valid IEC code. The appellant contended that he was not aware of any malpractice and had duly informed the Department about the importing firm's IEC code status. However, the Department maintained that the misdeclaration and overvaluation pointed to the appellant's involvement.

3. Legal Documentation and Partnerships:
The judgment scrutinized the legal documents related to the partnership changes within M/s. Rishipushp Trading LLP, highlighting the transition of partners and the authorization granted to individuals to act on behalf of the firm. The documents demonstrated the continuity of the importing firm's operations despite partner changes and geographical shifts.

4. Penalty Imposition and Legal Provisions:
The Tribunal examined the penalties imposed under sections 112(a) & (b)(iii) and 114A of the Customs Act, 1962. It was noted that while the penalty under section 114A was set aside due to lack of evidence of intentional false information, the penalty under section 112(a) & (b)(iii) was upheld. The appellant's failure to provide documentation supporting the declared value of the imported goods led to the confirmation of this penalty.

5. Judgment Outcome:
Ultimately, the Tribunal partially allowed the appeal by setting aside the penalty under section 114A but confirming the penalty under section 112(a) & (b)(iii) of the Customs Act, 1962. The decision was based on the appellant's failure to produce necessary documentation related to the valuation of the imported consignment, emphasizing the importance of fulfilling obligations as a Customs Broker.

This comprehensive analysis of the legal judgment showcases the intricacies of the case, including the factual background, legal arguments presented, and the Tribunal's decision on the penalties imposed on the Customs House Agent.