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TMI Blog2022 (10) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Byawat) of the importers were also searched on 17.10.2018. Their statements also got recorded. Based upon those statements and the documents recovered during search, department found that one Shri Pukhraj R Padiyar used the firm M/s.Rishipushp Trading LLP for the impugned import by declaring the overvalue of Rs.1,93,68,833.75 instead of its actual value of Rs.9,47,510/-. As such, he was alleged to have abetted the act which has rendered the seized rough precious stones Sapphire liable to confiscation and himself liable for penalties under the Customs Act. With respect to the appellant, the Department observed that he as Customs Broker of the importing firm has failed to fulfill its obligation and had deliberately / knowingly ignored the fact that the importer is not the actual importer and the importer is the one who is not the IEC holder. With these observations, show cause notice No. 02/2019 dated 23.08.2019 was served not only upon the importing firm and its partners but also upon the appellant proposing the imposition of penalty under section 112 (a) (b) (iii) and under section 114A of the Customs Act, 1962. The said proposal was initially confirmed vide the Order-in- O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Departmental Representative has also impressed upon that none of the partners of the importing firm have appeared nor they have challenged the order of confiscation of the consignment and redetermination of its value and even of imposition of penalty upon the partners as well as on the importing firm. Finally impressing upon that such declaration is not otherwise be possible without the deliberate malafide intent and involvement of CHA, that the order of imposition of penalty upon him is in affirmed. Appeal is therefore, prayed to be dismissed. 5. Having heard both the sides and perusing entire record all the facts, it is held as follows: There is no dispute that the importer in the present case is M/s.Rishipushp Trading LLP and that the firm is an importer-exporter code (IEC) holder. 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. I also perused the Deed of Admission cum Retirement dated 12.1.2018/ Addendum to LLP agreement dated 10.2.2017. The perusal thereof reveals that it is a document between new partners and retiring partners of M/s.Rishipushp Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oker M/s Purshottam Kumar Jain has mainly contested that he had undertaken customs clearance work of noticee no. 1 M/s Rishipushp Trading LLP who are IEC code holder. He was not concerned whether or not its Partners individually held IEC Code. Change of Partners in the LLP firm did not render the said firm in operative. All imports were done by this firm only. There is no question of him allowing import related activities at the behest of the persons who were not the IEC holders. The noticee no. 2 Shri Pukhraj Padiyar had done all work on behalf of M/s Rishipushp Trading LLP as its authorized signatory/ Power of Authority holder. The concept of doing work at behest of Power of attorney holder is an accepted legal principle and acknowledged so in the CBEC circular 09/2010 dated 08.04.2010. He ensured proper KYC done of the importer in question. He in true spirits and bonafidely also complied with the Instruction envisage in Circular No. 9/2010-Cus., dated 8-4-2010. The said statement is actually in line with the above documents. The findings of the Adjudicating Authority are therefore, held to be the findings in total ignorance of the documentary as well as oral evidence on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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