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TMI Blog2018 (10) TMI 1855X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (J) and Bijay Kumar, Member (T) Shri B.L. Soni, Consultant, for the Appellant. Shri Rakesh Kumar, Authorised Representative, for the Respondent. ORDER The issue in this appeal is whether the appellant has been rightly imposed penalty of ₹ 1,00,000/- under Section 114AA of the Customs Act, 1962. 2. The brief facts are that the appellant had completed his graduation and was pursuing Hotel Management from IHM Bangalore. During February, 2013 when appellant s maternal cousin Shri Anirudh Palta asked him to accompany him to visit his (Anirudh s) brother- Bhavuk Palta, who has been residing in Hong Kong for the past 7-8 years. Shri Anirudh had told him that his brother Bhavuk had asked him to visit Hong Kong along with 6-7 friends. Expenses for the visit were to be borne by Shri Bhavuk Palta. 3. The appellant along with his elder brother, Shri Anchit Badhwar, maternal cousin, Shri Anirudh Palta and four others, who were introduced to him by Anirudh as S/Shri Heera Lal, Vikas and Devi Lal had gone to Hong Kong on 19-2-2013. 4. The appellant along with others (named above), had stayed at Hotel Ramada, at Hong Kong for 7-8 days. Tickets and hotel expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n some other documents also, which were subsequently used for changing the names of Secretary and Directors of the company, in the name and style of M/s. Moral Colour Limited, Hong Kong. Shri Nilesh and his associates had already got the company - M/s. Moral Colour Limited, Hong Kong registered with Central Registry, Hong Kong on 4-1-2013 with other Directors, names of whom are not known to the appellant. These original Directors had resigned on 21-2-2013 and it appears that Nilesh and his associates had fraudulently got signatures of the appellant on some documents which were subsequently used to change the name of the Directors, and the appellant was also made the new Director of M/s. Moral Colour Limited, Hong Kong. Copies of the documents were downloaded from the Internet showing details of incorporation of M/s. Moral Colour Limited, Hong Kong, resignation of its Original Director and Secretary, change of Secretary and Director and date of dissolution of the company by Deregistration. 10. After being informed of the bank account number by the Customs Authorities, the appellant vide letter dated 20-5-2014 informed the HSBC Bank that after opening of the bank account, the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Hong Kong for the first time on 20-2-2013. 19. It is submitted that the appellant has never dealt with this company in any manner till date. 20. The appellant was also shown the copies of documents relating to Returns of Allotment in M/s. Creation Aim Limited. While admitting that signature on these documents were that of the appellant, it was emphatically submitted that no money was paid by the appellant for the shares shown in the said document. All the expenses in regard to opening the company and bank accounts were born by Sh. Neelesh Bhandari. 21. However, appellant was surprised to receive Show Cause Notice No. DRI F. No. 33A/XI/32/2013-CI(JG), dated 24-11-2014 issued by the Additional Director General, DRI (Headquarters), New Delhi wherein the appellant, who himself was a victim of conspiracy by unscrupulous persons including his cousins Anirudh Palta and their friend Neelesh Bhandari, was equated with other fraudsters and penalty proceedings were initiated against him. The appellant had disclosed all the facts to the DRI officers during their investigations and had cooperated fully with them. 22. The appellant submitted his reply to the above mentioned show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yover, Jaipur was the owner of M/s. Moral Colour Limited, Hong Kong. No notice has been issued to Shri Heeralal Meena, though he is also stated to be one of the Directors of the company M/s. Moral Colour Limited, Hong Kong. The Noticee is also not aware whether any statement of Shri Heeralal Meena was recorded by the DRI. If one of the namesake Director, namely Shri Heeralal Meena is not considered as the person abetting fraudulent import on the same facts, how can the Noticee, who was also namesake Director could be fastened with the abetment charges. 29. The Adjudicating Authority under the facts and circumstances held that this appellant after getting some money, had opened the bank account in Hang Seng Bank in the name of Moral Colour Limited and also became its Director. Thus, the appellant has done acts of omission and commission and are liable for penalty under Section 114AA of the Customs Act. 30. Ld. Counsel for the appellant urges the facts that the appellant was a student at the relevant time studying in the Institute of Hotel Management, Bengaluru. The appellant unknowingly has been used by his cousin, Anirudh Palta and Bhavuk Palta in connivance with the Neel Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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