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TMI Blog2023 (3) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter, this appellant contracted Mr. Roshan Singh and arrange for the use of his IEC in the name of Roshan Singh and Company, for which this appellant promise to give Rs. 10,000/- per container to Mr. Roshan Singh and thus was making Rs. 10,000/- per container out of the amount of 20,000/-. In this view of the matter, it is evident that this appellant was also receiving 10,000/- for making the arrangement for import through Mr. Roshan Singh. It is further found that this appellant have not resorted to use of any documents knowing it befalls or forged. The penalty under Section 114AA is set aside and the penalty under Section 112(a) is reduced to Rs. 1 lakh. Appeal allowed in part. - Customs Appeal No. 52392 of 2019(SM) - FINAL ORDER NO. 50355/2023 - Dated:- 17-3-2023 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Ms. Priyanka Goel, Advocate for the Appellant Mr. Viswa Jeet Saharan, Authorised Representative for the Respondent ORDER The issue involved in this appeal is whether penalty of Rs. 5 lakh under Section 112(a) of the Act and penalty of Rs. 5 lakhs under Section 114AA of the Act have been rightly imposed. 2. The brief facts are that this appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valued at Rs. 3,88,500/- used for concealing the smuggled fire crackers, also were liable for confiscation alongwith the packing materials. Further, it appeared to revenue that Anti-dumping duty was payable on Eglass off Spec Chopped Strand Mat (B grade) classifiable under CTH 7019 @ 40.91% under Notification No. 30/2011-Cus. Thus, there was also attempt to evade Anti-dumping duty by mis-declaration. It further appeared that the aforementioned attempt to smuggle fire crackers was made by syndicate in a well organized manner. The entire scheme of illegal import was planned in advance, firstly to do the import-export, formed company/firm, solely for the purpose of fraudulent import. Various persons as members of this syndicate had jointly forged document as well as resorted to mis-representation before the CHA and the Customs. M/s Roshan Singh Company, Shahabad, a proprietary firm of Roshan Singh, resident of District Kurukshetra, Haryana, was registered as traders under Central Sales Tax. Mr. Hemant Gandhi, one of the key persons had instructed as the appellant, to find any person having IEC and promised to pay Rs. 20,000/- for each import. In turn, this appellant persuaded Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch goods liable for confiscation. The import was made in M/s Roshan Singh Company allegedly by Shri Hemant Gandhi, Narinder Kumar, Deepak Rishi and Hemant Sachdeva. These four persons were individually or collectively under obligation to conduct themselves inconformity with the provisions of the Custorns Law. The appellant nowhere is liable to discharge any obligation under the Customs Act and therefore penalty under Section 112 (a) and Section 114AA of the Custom Act is not sustainable (c) There is no allegations in the Show cause notice that appellant had any knowledge about the illegality of the import. 9. The Commissioner (Appeals) vide ex parte Order-in-Appeal dated 02.07.2019 was pleased to dismiss the appeal, confirming the penalty. 10. Being aggrieved the appellant is before this Tribunal. 11. Learned Counsel for the appellant Ms. Priyanka Goel urges as follows: 11.1 That the Appellant was only an employee of main accused Sh. Hemant Gandhi on a monthly salary of Rs.10,000/-. His role attributed in the case was that he helped co-noticee / importer Roshan Singh in getting IEC and also helped him for finding a CHA for firm M/s. Roshan Singh Co. to get the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered himself for penalty u/s 112(a). by knowingly causing the bills of entry and other fabricated documents to be filed which contain incorrect information, he rendered himself for penalty u/s 114AA . 11.3 For the purpose of imposing penalty under Section 112(a) and Section 114AA, the onus is upon the department to establish mens rea/ malafide intention on the part of the Appellant. On the contrary, the reason for imposing such hefty penalty on the appellant is completely frivolous and has no legal backing. (i) There is absolutely not an iota of evidence which can suggest that appellant was aware about the illegal action of his employer i.e Hemant Gandhi (mastermind).The perusal of whole show cause notice, OIO and OIA makes it abundantly clear that appellant has not committed any violation of the provisions of Customs Act, 1962 for imposition of penalties under Section 112(a) and Section 114AA of the Act. (ii) The Commissioner (Appeals) also observed that on the behest of Sh.Hemant Gandhi Appellant used to get signature on the papers from Sh. Roshan Singh therefore he was involved in the acts of omission and commission which rendered the goods liable for confiscatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 2014 (310) ELT 593 (Tri-Bang) Reliance is placed on the decision of Arya International vs. Commissioner of Customs, Kandla, 2016 (332) ELT 726 (Tri. Ahmd) as well as in Mohammed Iliyas vs. Commissioner of Customs, Jaipur-1, 2018(360) ELT 570 (Tri-Del) wherein it was held that penalty under Section 114AA is improper when penalty is imposed under Section 112(a). (v) None of the co-noticee has deposed that there was any knowledge or connivance of Appellant in import of any restricted items i.e. fire crackers in violation of the provisions of Customs Act. 11.4 Appellant has duly co-operated with the department and provided all the relevant information as available to him. Appellant himself is the victim of fraud by his employer Hemant Gandhi and his associates who used his name, photograph and identity for obtaining unknown numbers without his knowledge. 11.5 Learned Counsel further urges that the case of this appellant is on equal footing as the case of CHA-Promod Logistic Services. This Tribunal in the case of Promod Logistic Final Order No. 53688/2017 dated 29.05.2017 have set aside the penalty under Section 112(a) and 114AA of the Act, taking notice of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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