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TMI Blog2017 (1) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commission is a clear indication that the provisions of section 112 were not intended to cover persons who are not concerned with the goods after its landing in India - penalty set aside - appeal allowed - decided in favor of appellant. - C/86435/2015 - A/88395/16/SMB - Dated:- 8-7-2016 - Shri C J Mathew, Member (Technical) Shri Anil Balani, Advocate for the appellant Shri M.K. Mall, Asstt. Commissioner (AR) for the respondent ORDER Shri Narendra Lodaya is in appeal against order-in-original no. 03/2015-16/COMM.NS-I/JNCH dated 17th April 2015 by which Commissioner of Customs, Nhava Sheva - II imposed a penalty on him under section 112(a) of the Customs Act, 1962. It would appear that the proceedings for misdeclarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact of undervaluation and his direct involvement in arranging or preparing invoices depicting low value @ 800 per MT. This fact has been admitted by him in his statement recorded on 15.2.2012 under Section 108 of Customs Act, 1962. Hence, this act of misdeclaration of value and description/quality of the goods has rendered the imported goods liable to confiscation under the Customs Act, 1962 and Shri Narendra Lodaya, by abetting these acts has rendered himself liable to penal action under Section 112(a) of the Customs Act, 1962. 3. The appellant seeks the extension of exclusion from penal provisions to co-noticees as decided by the Tribunal in SK Columbowala v. Commissioner of Customs (Import), Mumbai [2007 (220) ELT 492 (Tribunal) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en that the original authority has held the goods to be liable for confiscation on account of mis-declaration of value based on certain documents recovered from the importer as well corroborated by statements of the principal officers of the importing firm and the appellant. The two alternative decisions of the Tribunal in re S.K. Colombowala and re KI International (supra) are noted. Before proceeding to ascertain the applicability of the decisions of the Tribunal, to the present appeal, it may be worthwhile to examine the issue on merits. It is seen that the appellant does not carry out any activity within the territory of India. Betel nuts were imported from M/s CV Sejahtera, Indonesia, supported by commercial invoices which, allegedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment in Customs Act, 1962 in accepting the declared value or ascertaining on approximate value. It is the declaration made under section 46 of the Customs Act, 1962 by the importer containing all the details prescribed thereunder that creates the relationship between importer and tax administration. Though an invoice is required to be furnished, it is for the importer to do so and for the purpose of supporting the declared value. Under section 47 of Customs Act, 1962 it is for the proper officer to be satisfied that the import duty assessed after ascertaining value has been paid. 9. The importer, and the importer alone, creates the relationship of obligation upon and by making the prescribed declaration. Likewise, the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same penal provisions as the importers themselves in each and every proceedings. Contemplation of such a jurisdiction caricaturises the customs enforcement. The situation of the appellant is not much different from that of shippers/consigners of the goods. 11. Accordingly, the imposition of penalty on the appellant for an alleged act that has nothing to do with the obligation devolving on imports under section 46 and section 47 of the Customs Act, 1962 may not be proper. Lack of jurisdiction that precludes the appellant from approaching the Settlement Commission is a clear indication that the provisions of section 112 were not intended to cover persons who are not concerned with the goods after its landing in India. 12. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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