2023 (2) TMI 738 - AT - Customs

Levy of penalty u/s 114(iii) and Section 114AA of the Customs Act, 1962 - freight forwarder - fraudulent availment of Special Focus Market Scheme (SFMS) benefits, by producing forged House BL and landing certificate, wherein consignee country was deliberately mis-declared by them for the purpose of availing undue benefit under SFMS - HELD THAT - The Commissioner (Appeals) in para 16.2 of the impugned order has observed, in respect of the order of the Settlement Commission. Undisputedly there is no denial vis- -vis the role of the appellant in the acts undertaken leading to loss of revenue. However, taking note of the fact that the appellant is not the actual beneficiary but is only the freight forwarder arranging for container, taking the consignment to shipping lines etc. as per the directions of Shri Ramesh Singh, it is found that the penalty imposed on the appellant is excessive. The interest of justice will be met if the penalties are reduced to Rs.2.5 lakhs under Section 114(iii) and Rs.2.5 lakhs under Section 114AA of the Customs Act, 1962. Appeal disposed off.

Issues Involved:
1. Fraudulent availing of Special Focus Market Scheme (SFMS) benefits.
2. Liability for confiscation of goods under Section 113(1) of the Customs Act, 1962.
3. Demand and recovery of duty under Section 28AAA of the Customs Act, 1962.
4. Imposition of penalties under Section 114(ii), 114(iii), and 114AA of the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Fraudulent Availing of SFMS Benefits:
Intelligence gathered by the Directorate of Revenue Intelligence (DRI) indicated that multiple firms, including M/s Aditya Investment and Exim Trade Co., M/s Veeaar Fabware Pvt. Ltd., M/s Vihaan Infin & Exim Pvt. Ltd., M/s Vedant Trade Impex Pvt. Ltd., and M/s Simplex Fabware Pvt. Ltd., had fraudulently availed SFMS benefits. They produced forged House BL and landing certificates, misdeclaring the consignee country to avail undue benefits. The goods purportedly destined for landlocked CIS countries (e.g., Armenia, Azerbaijan, Kazakhstan, and Tajikistan) never actually traveled to these destinations.

2. Liability for Confiscation of Goods:
The Joint Commissioner ordered the confiscation of goods with a declared FOB value of Rs. 13,38,00,317 under Section 113(1) of the Customs Act, 1962, read with Section 11 of the Foreign Trade (Development & Regulation) Act, 1992, and Rule 14(2) of the Foreign Trade (Regulation) Rules, 1993. However, since the goods were not available for confiscation, no fine in lieu of confiscation was imposed.

3. Demand and Recovery of Duty:
The duty amounting to Rs. 51,61,870 was demanded and ordered to be recovered from the involved firms under Section 28AAA of the Customs Act, 1962, along with interest as per Section 28AA of the Customs Act, 1962. The amount paid by the firms under TR-6 Challan was appropriated towards this duty liability.

4. Imposition of Penalties:
Penalties were imposed under various sections of the Customs Act, 1962:
- Section 114(ii): Penalties ranging from Rs. 1,82,845 to Rs. 21,19,004 were imposed on the involved firms.
- Section 114(iii) and 114AA: A penalty of Rs. 25,00,000 was imposed on Shri Ramesh Singh, both as a proprietor and director of the involved firms, for his individual role.
- Section 114(iii) and 114AA: A penalty of Rs. 10,00,000 each was imposed on Shri Suryabhan Eknath Dhurpate alias Suresh Matre, Proprietor of M/s Sanket Overseas, for his role in aiding and abetting the fraudulent activities.

Appeal and Considerations:
The appellant, Shri Suryabhan Eknath Dhurpate, challenged the penalties imposed on him. The Joint Commissioner noted that he abetted Shri Ramesh Singh by issuing fake/bogus landing certificates, which he admitted in his statements. The Commissioner (Appeals) upheld the penalties, noting the appellant's conscious role in aiding the fraudulent activities.

Reduction of Penalties:
The appellant argued that in a similar case settled by the Settlement Commission, a penalty of Rs. 50,000 was imposed. The Commissioner (Appeals) distinguished the proceedings before the Settlement Commission from adjudication proceedings, stating they are not comparable. However, considering the appellant's role as a freight forwarder and not the actual beneficiary, the penalties were deemed excessive.

Final Order:
The penalties on the appellant were reduced to Rs. 2.5 lakhs under Section 114(iii) and Rs. 2.5 lakhs under Section 114AA of the Customs Act, 1962. The impugned order was upheld with this modification, and the appeal was disposed of.

Conclusion:
The judgment addressed the fraudulent availing of SFMS benefits, the liability for confiscation of goods, the demand and recovery of duty, and the imposition of penalties. The penalties on the appellant were ultimately reduced, considering his role as a freight forwarder.

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