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TMI Blog2023 (7) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... instigation, aid, encouragement of an offence - It necessarily involves the knowledge that the act being abetted is wrong. In the context of Section 112(a) of the Customs Act, by definition, the expression abet means instigating, conspiring, intentionally aiding the acts of commission or omission that render the goods liable for confiscation - It is apparent that the knowledge of a wrongful act of omission or commission, which rendered the goods liable for confiscation under Section 111 of the Customs Act, is a necessary element for the offence of abetting the doing of such an act. In M/S AMRITLAKSHMI MACHINES WORK, MR. N.K. BRAMCHARI, MANAGING PARTNER, M/S. AMRITLAKSHMI MACHINE WORKS VERSUS COMMISSIONER OF CUSTOMS (IMPORT) [ 2016 (2) TMI 57 - BOMBAY HIGH COURT ] a Full Bench of the Bombay High Court had considered the aforesaid issue and held that the word abetment is required to be assigned the same meaning as under Section 3(1) of the General Clauses Act, 1897. The penalty imposed on the appellant under Section 112(a) of the Customs Act is set aside - Appeal allowed. - CUSAA 3/2021 & CM APPL. 5517/2021 - - - Dated:- 4-7-2023 - HON BLE MR JUSTICE VIBHU BAKH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of this Court. However, this Court had, on 11.04.2023, framed the following question for consideration in this appeal: Whether, in the given facts, penalty under Section 112(a) of the Customs Act can be imposed on the appellant? 6. We feel that it would be apposite to reframe the question to be addressed as under: Whether, given the finding that no case of connivance is made out by the appellant and he had no knowledge of the import of prohibited goods, penalty under Section 112(a) of the Customs Act for abetting their illegal import of prohibited goods, can be imposed on the appellant? FACTUAL CONTEXT 7. The officials of the Directorate of Revenue Intelligence (hereafter the DRI ) examined the container (being container no. HLXU 6239078) imported by M/s Pixel Overseas. The said container was found to contain the following goods: Description of goods No of Cartons Quantity 1. Marking on Card Board Gas Cooker (SUCULA) GB 16410- 2007 2800 Pa/ 2000 Pa 7Kgs 6Kgs 73x41x17 cm Marking on Gas Stove inside the Cartons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, the employee of the importer, who was stated to be on the way with the PAN Card and the copy of the IEC, did not show up. 11. The statement of Sh. Deepak Kapoor was also recorded. He confirmed that he had approached the appellant as he was acquainted with him as well as Sh. Narinder Narula, CHA and the proprietor of M/s GND Cargo Movers. He stated that he had handed over the said documents to the appellant for clearance of the goods and that the appellant had agreed to file the documents on payment of Rs. 5,500/- as agency charges. 12. Sh. Deepak Kapoor explained that in February 2013, he was introduced to one Sh. Ramesh Gupta, Director of M/s GT Sky HK Ltd., Hong Kong by his friend Sh. Vivek, who resided in China and was carrying on the business as a forwarding agent. 13. He stated that in March 2013, he had received a call from one Sh. Sonu, who identified himself as a representative of Sh. Ramesh Gupta in Delhi. He informed him that a container of gas stove was being imported by M/s Pixel Overseas, which required clearance. He agreed to pay a sum of Rs. 7,500/- as charges for the same. In addition, he agreed that all expenses towards customs duty, shipping line ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to 25% of the maximum penalty under Section 112(a) of the Customs Act, on the appellant. 18. The Adjudicating Authority faulted the appellant for filing the Bill of Entry without verifying the antecedents of the importer and without giving a complete KYC. A duly attested copy of the PAN and the IEC of the firm were not made available to the appellant and he did not know the importer or its proprietor. The Adjudicating Authority also faulted the appellant for failing to inform the concerned Deputy Commissioner of Customs regarding the shortcomings in the import documents and the Bill of Entry. 19. The Adjudicating Authority imputed knowledge of the illegal import to the appellant and held Thus, from his conduct, it is quite evident that Shri Rajeev Khatri was aware of the things which led to irregular filing of this B/E for the illegal imports made. IMPUGNED ORDER 20. The Tribunal had appreciated the facts and had found that there was no case of connivance established against the appellant and that he had unknowingly abetted or been instrumental in the import of the prohibited goods by the actual importer Sh. Ramesh Wadhera. The concluding paragraph of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 111 of the Customs Act. The second category of persons comprises of those who abet the doing or omission of such acts. In the present case, penalty has been imposed on the appellant on the allegation that he had abetted the acts of misdeclaration, importation of prohibited goods and not of committing those acts. 25. Ms Narain, learned counsel who appeared for the Revenue contended that penalty imposed under Section 112(a) of the Customs Act was civil in nature. Therefore, there is no necessity for imputing any knowledge of the acts that rendered the goods liable for confiscation. She submitted that the fact that the appellant had filed the Bill of Entry for the import of goods, which were found to be prohibited, was sufficient to impose penalty under Section 112(a) of the Customs Act. She contended that it was not essential to establish mens rea for imposing such penalty. 26. There is no cavil that the appellant s role in the offending import was confined to the ministerial act of filing the Bill of Entry. Indisputably, the said ministerial act is not the reason why the goods have been held to be liable for confiscation under Section 111 of the Customs Act. The Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods that rendered them liable for confiscation, are liable to pay the penalty as stipulated under Section 112(a) of the Customs Act, without any requirement to establish their mal intent. However, the same principle would not apply to persons who are alleged to have abetted such acts of omission or commission. This is because, abetment, necessarily requires, at the minimum, knowledge of the offending Act. 31. The use of the expression abet in Section 112(a) of the Customs Act, makes it implicit that the person charged, who is alleged to have abetted the acts of omission or commission, has knowledge and is aware of the said acts. A plain meaning of the word abet means instigation, aid, encouragement of an offence [Simpson, J. A., C., W. E. S. (1989). The oxford english dictionary (2nd ed., Vol. 1). Clarendon Press.] . It necessarily involves the knowledge that the act being abetted is wrong. 32. The Black s Law Dictionary [ Abet. Black s Law Dictionary, 10th Edition, Edited by Bryan A. Garner, 10th ed., West, 2014, pp. 4 4.] defines the expression abet as under: 1. To aid, encourage, or assist (someone), esp. in the commission of a crime . 2. To suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at thing. Illustration A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z, B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. 36. Thus, in the context of Section 112(a) of the Customs Act, by definition, the expression abet means instigating, conspiring, intentionally aiding the acts of commission or omission that render the goods liable for confiscation. 37. It is apparent from the above that the knowledge of a wrongful act of omission or commission, which rendered the goods liable for confiscation under Section 111 of the Customs Act, is a necessary element for the offence of abetting the doing of such an act. 38. In Shree Ram v. State of U.P.: 1975 3 SCC 495, the Supreme Court held as under: 6. .Section 107 of the Penal Code which define ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to cover such cases that Section 112(a) of the Act also includes a person who abets the act or omission to act which has rendered the goods liable to confiscation. Imposing penalty upon an abettor without any mens rea on his part would bring all business to a half as even innocent facilitation provided by a person which has made possible the act or omission to act possible could result in imposing of penalty. 2 40. We respectfully concur with the aforesaid view. This view has also been consistently followed by the Tribunal. 41. In Commissioner of Customs (Import) v. Trinetra Impex Pvt. Ltd.: (2020) 372 E.L.T. 332 (Del.), a Co-ordinate Bench of this Court had rejected the Revenue s appeal against an order of the Tribunal setting aside the levy of penalty on a CHA under Section 112(a) of the Customs Act. This Court had referred to the decision of the Bombay High Court in Amritlakshmi Machine Works v. The Commissioner of Customs (Import), Mumbai (supra) and held as under: 11. In respect of the show cause notice dated 8-7-2011, the imposition of the penalty has been made under Section 112(a) of the Act in respect of the goods which have been held to be liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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