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TMI Blog2023 (12) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... rs imported or exported goods to confiscation is liable for penal action under section 114 of the Customs Act. In addition, any person who has signed a false or incorrect document is liable for penalty under section 114AA of the Customs Act. The Customs Act deals with the Confiscation of goods and conveyances, and imposition of penalties . It is further significant to note that the Legislature has simplicitor used the word any person to fasten the liability of a penalty. The Customs Act has not defined the word person and, therefore the definition and rules of interpretation contained in the General Clauses Act, 1897, can be taken recourse to. Hon'ble Apex Court in the case of OM PRAKASH BHATIA VERSUS COMMISSIONER OF CUSTOMS, DELHI [ 2003 (7) TMI 74 - SUPREME COURT] dealt with the over invoicing of export goods, and held that, when the importation or exportation, of the goods are subjected to certain prescribed conditions to be fulfilled either before or after clearance of the goods, and if those conditions are not fulfilled, the said goods would be considered as prohibited goods and Sections 2(23), 11 and 113(d) of the Customs Act, 1962 would come into play and the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant submitted that Mr. Alip Kumar Das, a co-noticee in the subject show cause notice had approached the Tribunal by way of Customs Appeal No. 52100 of 2019 seeking deletion of penalty imposed upon him under Section 114(iii) and Section 114AA of the Customs Act, 1962. The Tribunal vide order dated 14.09.2020 partly allowed the appeal filed by Mr. Alip Kumar Das and set aside the penalty imposed under Section 114(iii) of the Customs Act, 1962 and reduced the penalty from Rs. 10,00,000/- to Rs. 1,12,500/-. The learned Counsel submitted that Mr. Alip Kumar Das worked as an employee of Mr. Sajjan Kumar (co-noticee and the alleged mastermind) and looked after the work such as preparation of invoices, packing lists for the export and bank related work and other work as directed by Mr. Sajjan Kumar. The Tribunal, while allowing the appeal of Mr. Alip Kumar Das, had held that Mr. Alip Kumar Das as an employee, had carried out the instructions and directions of his employer Mr. Sajjan Kumar and therefore, the allegation of attempt to export goods improperly by Shri Alip Kumar Das is not established. The Tribunal concluded that the allegation of aiding and abetting was not proved. 3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed, the adjudication should have been done within a reasonable period of time. It is a trite law that when no time limit is prescribed under the law, it has to be done within a reasonable period of time i.e. preferably within three years and not later than five years. However, there was a delay of more than 6 years in adjudication and hence the same is liable to be set aside. 4. Learned Authorised Representative submitted that the factual matrix of the case established the appellant as agent of the buyer in India involved in fraudulent exports and claim of unauthorized duty drawbacks on the exchequer. Infact all these owners/ directors of the overseas companies were Indian only and the said companies were registered only for remittance purpose only. He contended that the appellant had knowledge of the fraudulent exports and he was facilitating the same for which he received 30% commission, apart from being 49% shareholder of the overseas companies. Statements of various Noticees proves beyond doubt that the documents were fabricated and the exporters, viz., Indus Chemitex and SRG had sublet their IEC to claim illegal drawback amount. The appellant's role was critical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ami. It is an admitted fact that the appellant used to visit Dubai every three months for business purposes and used to get commission in cash on the profits earned. It is also admitted by the appellant that he was aware of the modus operandi adopted in the case where the exporters had shown highly inflated values in their invoices and the shipping bills were consigned to their firm in Dubai namely M/s Aan Impex. The Tribunal has categorically held that there is no evidence that the co-Noticee had been the beneficiary of any amount or part thereof, whereas in the instant case the appellant was receiving 30% of the profits. From the above, it is apparent that the role of the appellant as a partner in the firm is not on the same footing as that of the salaried employee. On this ground alone, we are not inclined to accept this submission. 8. Before we proceed to consider the other submissions it would be appropriate to reproduce the relevant sections of the Customs Act, 1962 under which penalties have been imposed on the appellant. Section 114.- Penalty for attempt to export goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in the General Clauses Act, 1897, can be taken recourse to. Section 3(42) of the General Clauses Act defines person to mean person shall include any company or association or body of individuals, whether incorporated or not . A partnership firm therefore falls within the definition of 'person' as defined in the General Clauses Act. It is on record that the appellant entered into a partnership with Shri Hussain, Dubai National and started a company in the name of Aan Impex Gen trading LLC, in November 2009 and his share in the partnership was 49%. He regularly visited Dubai and collected 25 to 30% of the profits of this company. He has also admitted that he has gotten his visa to visit Dubai on behalf of the company. It is seen that he has also admitted to have introduced the alleged mastermind Shri Sajjan Kumar to his partner Shri Hussain. He has agreed in his statement that export remittances were from other firms based in Hong Kong, London, Sharjah instead of their Dubai-based firm. He has accepted that he was aware of this agreement between Sajjan Kumar and Hussain. Further in his statement dated 03.11.2011, the appellant has in response to questions No. 36 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the importation or exportation, of the goods are subjected to certain prescribed conditions to be fulfilled either before or after clearance of the goods, and if those conditions are not fulfilled, the said goods would be considered as prohibited goods and Sections 2(23), 11 and 113(d) of the Customs Act, 1962 would come into play and the exporters would be liable for penalty. In the case of Abishek Export v. CC, Cochin, [2007 (208) ELT 155 (T-Bang.)] the Tribunal considered a case of over valuation of export goods to get higher DEPB credit, and the confiscation of the impugned goods and penalty were upheld under the relevant provisions of the Customs Act. The Supreme Court in the case of CCE v. Suresh Jhunjhunwala 2006 (203) ELT 353 (SC), dealt with a case of over-valuation of export goods for claiming higher DEPB, and it was held that the decision of the Supreme Court in the case of Om Prakash Bhatia (supra) squarely covered the above case. In a catena of decisions of the Tribunal in respect of cases of over valuation of export goods for benefit under export incentive schemes, the imposition of penalties under Section 114 of the Customs Act, 1962 has been upheld. 8.4 The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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