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TMI Blog2023 (10) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... We further find that the said importer M.A. Mujahid, having come to know of the error in the shipping documents had approached the Customs Department at the Gateway Port for amendment of their IGM. Under the facts and circumstances, on being so advised, the said importer had filed Bill of Entry on first check basis . Thus, under such admitted facts, no case of mis-declaration or undervaluation is made out - The whole case of Revenue is based on assumptions and presumptions which have no legs to stand. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Caravel Logistics. The SCN was adjudicated on contest vide OIO dated 30.11.2015 and the following operative Order was passed: (i) Declared value of Rs. 1,72,99,953/- was rejected and the value was redetermined at Rs.4,58,25,512/- under Sec 14(1) of the Act read with Valuation Rules. (ii) The goods under Bill of Entry No. 4235021 dated 31.12.2013 and Gateway IGM No. 20536059 dated 29.01.2013 in container No.TGHU- 7700699 valued at Rs.4,58,25,512/- were confiscated under Sec 111(f) & (m) of the Act with option to redeem on payment of fine of Rs.45,00,000/-. (iii) Penalty of Rs.5,00,000/- each was imposed on the Proprietor of M/s Great Overseas - Mr. M.A. Mujahid under Sec 112(a) and under Sec 114AA of the Act. (iv) Penalty of Rs.5,00,000/- was also imposed on this Appellant under Sec 112(a) and under Sec 114AA of the Act. (v) Penalty of Rs.2,00,000/- was imposed on M/s Caravel Logistics under Sec 112(b) and under Sec 114AA of the Act. Penalty on Mr. Anwarullah, Manager of M/s RS Travels was dropped. Being aggrieved, the Appellant is before this Tribunal. 4. Assailing the Impugned Order, learned Counsel for the Appellant urges that the penalty has been imposed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing access to Appellant's email and phone and using address of M/s. Reliance Tyres for his PAN, cannot be conclusive proof of the Appellant's involvement in the import of mis-declared and under-valued goods; (d) The assertion that email can be sent only by the account holder and no one else is not tenable; that in a small business like the Appellant's, all the employees could access the office email and office phone number; without proving Appellant's complicity in a scientific and legal manner, it was concluded that Appellant actively connived and abetted the Importer based on a printout copy of the email and imposed penalty on the Appellant; (e) In the case of Skoda Auto India Pvt. Ltd. Vs. CC (Import), JNCH, Nhava Sheva [2014 (313) ELT 600 (Tri.-Mumbai)], it was held that in the absence of their knowledge of imports made and under-valuation of imports, the penalty is not imposable under Sec 112 of Customs Act. Penal Proceedings under Customs Act are quasi criminal and there should be positive, tangible evidence produced by the Revenue before penalty is imposed. In absence of concrete positive evidence, penalty must be set aside. (f) In the case of SP Bahl Vs Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a case of previous mis-declaration on the part of this Appellant wherein in the year 2014, in the guise of import of diapers, a case of smuggling of cigarettes was booked. The said dispute is still pending in the Appellate stage. 9. Rebutting the submissions/arguments of Revenue, learned Counsel for the Appellant urges that the container in question had arrived initially at Gateway Port, Nhava Sheva, in January, 2013. Admittedly, as per SCN, the importer - M.A. Mujahid requested the shipping company to approach the Gateway Port for amendment of IGM as regards description. As there was mismatch in description in IGM and description in invoice and packing list, the importer's Bill of Entry did not get noted in the EDI System. The Application for amendment was made in April, 2013 itself at the Gateway Port requiring only minor modification/amendment in the number of cartons and weight as well as the description of the goods. As the officers at the Gateway Port felt that the amendment prayed amounts to major amendment, they were of the opinion that the goods need to be examined, but by the time, the container had moved from Gateway Port to ICD Hyderabad. Thus, no allegation of mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st this Appellant with reference to M/s Star Impex. In the matter of M/s Star Impex, this Appellant was wrongly implicated and his statement was recorded by the DRI subjecting him to coercion and undue influence. The said statements were immediately retracted and this Appellant had also approached Hon'ble High Court of Telangana in WP No. 30793/2016 and vide Order dated 13.12.2016, the Hon'ble High Court set aside the demand with respect to past clearances and limited the Adjudication Order to live consignment. Thus, learned AR is only speaking half the facts to the prejudice of the Appellant. 10. Having considered the rival contentions, we find that admittedly, the said importer - Mr. M.A. Mujahid, Proprietor of M/s Great Overseas, has used the email ID and address of this Appellant behind his back and without his permission. We further find that the said mobile number 9246368100 was being used as a common telephone of the concern of the Appellant, wherein, all the staff were using it for making and receiving calls in connection with the business of the Appellant as well as for personal purposes. Thus, Mr. M.A. Mujahid had used the said phone which was also available to him as an ..... 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