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TMI Blog2017 (9) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the past clearance, their identity and who processed the import on whose behalf could not be established. Even on the principle of preponderance of probability as invoked by the Original Authority, the present case falls much short of required proof. The selective reliance of part of the retracted statements alone cannot be the basis for sustaining the duty demand against the appellant. On careful consideration of the evidences available on record, we hold that Shri Prashun Jain cannot be held as importer in the present case. Penalty u/s 114 AA, under Section 28 and 112 of the Act - Held that: - if a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this act shall be liable to a penalty not exceeding five times, the value of goods. We note that the said provisions are wide enough to cover the acts of the appellant as brought out during the investigation. Considering that the evidences of such involvement in the past clearances are not available to a sustainable level and involvemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te (For appeal No.C/51369 of 2014) and Ms. Surabhi Sinha, Advocate (For appeal No.C/51661 of 2014) for the appellant. Shri R.K. Manjhi, Authorized Representative (DR) for the Respondent. ORDER Per: B. Ravichandran These two appeals are against the common impugned order dated 31/10/2013 of Commissioner of Customs (I G), New Custom House, Airport, New Delhi. The case relates to import consignment covered by bill of entry dated 16/11/2010. The said bill of entry was filed by Custom House Agent M/s Rajender P. Kapur in the name of M/s Rajdhani Crafts, Jaipur, a 100% EOU. The goods were declared as herald frame (spare parts of weaving machine) with a value of ₹ 5,66,862/-. The exemption from customs duty and CV duty was claimed under Notification 52/2003-CUS dated 01/03/2003 and 2/2008-CX dated 01/03/2008. Based on certain specific information regarding possible violation of provisions of Customs Act, 1962 in the import of the said consignment, the officers intercepted the consignment and conducted further follow up enquiry. Shri Prashun Jain, had gate pass for the consignment and was present in the clearance gate for clearing the said goods. M/s Pras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned goods. Even the show cause notice alleged that Shri Prashant Gupta is involved in import and the demand was also proposed against appellant alongwith Shri Prashant Gupta. However, the impugned order exonerated Shri Prashant Gupta based on the very same evidence ; (c) there are serious infirmities and inconsistencies in the show cause notice as well as the impugned order. On the one hand, the appellant is held to be actually importer whereas on the other hand it was also held that the appellant is CHA of anonymous import and thus gets status of importer in terms of Section 147 (3) of the Act ; (d) merely because the appellant had the gate pass for the goods under said bill of entry, no action can be taken against the appellant. The goods were lying outside the customs area and the appellant never presented himself for clearance from customs. The duty demand on the past imports are not at all sustainable. There is no evidence about the involvement of appellant as the importer of goods. No evidence was given in the notice regarding the contends of past clearances and the connection of the appellant to such clearances. Without prejudice to the above contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er P. Kapur, CHA, in whose name the bill of entry filed stated in his statement that he was not aware as to who filed the bill of entry. The statement of the transporter Shri Kishan Pal indicates that Shri Prashun Jain has booked the shipment for transport from airport to Rohini. Past import of similar goods were admitted by Shri Prashun Jain. Shri Prashun Jain as a F card holder, was aware of the provisions of customs law. The retraction statement given by him cannot be relied upon. The learned AR submitted that the appeals are without merit. 6. We have heard both the sides and perused the appeal record. The first point for determination is who is the importer of the impugned goods. Section 2 (26) of the Act defines importer , in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. In the present case, the impugned order held Shri Prashun Jain as the importer. In consequence of such finding, the duty demand and the penalties were confirmed against him. The appellant denied that he is the importer of the goods. On careful perusal of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said sub-section was not examined and discussed by the Original Authority. It states that in case of short levy or non-levy, the same shall not be recovered from the agent unless the Assistant Commissioner forms the opinion that the same cannot be recovered from the owner or importer. In the present case, when the importer himself is not identified, the question of authorization, expressly or impliedly does not arise. We note that the appellant never presented himself before the customs with reference to import or clearance of goods. He presented himself before the officers when the enquiry was conducted regarding the subject goods. It is also to be noted that the bill of entry in the present case is in the name of Shri Rajender P. Kapur, CHA. On later investigation, it was also revealed that Shri Kapur was not aware of filing of these bill of entry. 8. When the position regarding the consignment under seizure is as above, the proceedings with reference to past clearance are in further weaker ground. The contents of the past clearance, their identity and who processed the import on whose behalf could not be established. Even on the principle of preponderance of probability as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 3,111/- as normally charged for the said services. They have stated that they have not acted in any manner in violation of the provision of Customs Act. The Original Authority imposing penalty under Section 112, held that the appellants have given delivery order to an unauthorized person, thereby violated the provision of Customs Act. The Original Authority relied on the decision of Hon ble Karnataka High Court in CC, Bangalore Vs. Vikram Jain reported in 2009 (244) E.L.T. 504 (Kar.). We note that the Hon ble High Court was interpreting Section 111 and held that the person from whom the goods were seized has to establish the bonafideness with valid document. Further, we also note that the reliance placed by the Original Authority on the Tribunal decision dealing with unclaimed consignment has no application to the facts of this case to decide the penalty on the forwarding agent. Even if it is admitted that the delivery order was issued without verifying the antecedent of the person, this will not amount to abetting an act or omission of such act, which requires prior knowledge of possible breach of legal provision, by the main offender. The Original Authority stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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