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TMI Blog2024 (4) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... m the statement of Shri Ravinder Singh, we find that the manipulation in the documents were done by the Dubai Branch of the shipping line at the behest of the actual supplier. There is no evidence to link the appellant with the said manipulation done at Dubai office. The shipping line has not been roped in the present proceedings. The revenue has not substantiated the charge of connivance of the appellant with the illegal import rather he was instrumental in ascertaining the correct valuation of the impugned goods. We, therefore, do not find any justification for imposition of penalty u/s 114AA of the Act. The consistent stand taken in the judicial pronouncements is that no penalty can be imposed on the employee, who acts under the instructions of his employer unless and until there is proof of fraud having been committed by him. We are, therefore of the view that no penalty can be imposed on the appellant who was working as an employee being the Operation Manager with the Shipping Line and on the basis of the Bill of Lading made the statement that the supplier was M/s. Jubilee Middle East General Trading LLC, Dubai and the manipulation in the document was at the Dubai office of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing rejection of the declared value, re-determination of the same, confiscation of the impugned goods and penal actions. On adjudication, the order-in-original dated 23.03.2018 affirmed the proposal in the show cause notice and imposed penalty of Rs.15 lakhs on the appellant under Section 114 AA of the Act. The appeal filed by the appellant stands rejected by the impugned order. Hence, the present appeal. 5. We have heard Ms. Reena Rawat, learned Counsel for the appellant and Shri Girijesh Kumar, learned Authorised Representative for the Revenue and have perused the records of the case. 6. The limited controversy before us is whether the penalty imposed on the appellant being the employee of the Shipping Line under Section 114 AA of the Act is sustainable or not? 7. The submission of the learned Counsel is that the statement under the Section 108 of the Act was made by the appellant on the basis of bill of lading and other documents supplied by the office of the shipping line. She also referred to the statement of Shri Ravinder Singh, Regional Manager of the shipping line recorded on 17.11.2015 and 30.11.2015, where he admitted that the Dubai office of the shipping line changed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41, Dubai, UAE. With respect to both these consignments, the item declared by the shipper at Dubai was Imitation Jewellery with value of USD30489.50 and USD 14904 as declared to Dubai Customs. The submission on behalf of the appellant is that the Bill of Lading issued by the Dubai office of Shipping Line mentioned the supplier of the consignment as M/s Jubilee Middle East General Trading LLC, Dubai and since the Shipping Line was summoned, he was authorised by the company to give information as provided by the documentation department. Thus the appellant appeared on behalf of the Shipping Line and not in his individual capacity. 10. The bone of contention by the Revenue is the statement of Shri Ravinder Singh, Regional Manager of the Shipping Line recorded on 17.11.2015 where he categorically stated as under: Ans. - Yes, I agreed that goods so imported through container no.IALU 2126915 imported under Bill of entry No.7645655 dated 09.12.2014 by M/s. Advance technology Services were transshipped from Dubai by firm, M/s. IAL Logistics India Ltd., under bill of lading No.JEATKD042040 dated 06.11.2014, I am furnishing the self attested copies of bill of lading, Packing List, Invoice No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods. 13. The learned Counsel has placed on record the relevant discussion in the 27th Report of the Standing Committee of Finance, inserting section 114AA which reads as under: 64. It was inter alia expressed before the committee by the representatives of trade that the proposed provisions were very harsh, which might lead to harassment of industries, by way of summoning an importer to give a false statement etc. Questioned on these concerns, the Ministry in their reply stated as under. The enhanced penalty provision has been proposed considering the serious frauds being committed as no goods are being exported but papers are being created for availing the benefits under various export promotion schemes. The apprehension that importer can be summoned under Section 108 to give a statement that the declaration of value made at the time of import was false etc., is misplaced because persons summoned under Section 108 are required to state the truth upon any sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication for imposition of penalty under Section 114AA of the Act. 14. Lastly, the submission is that the appellant appeared and made the statement as an employee of the shipping company and hence cannot be penalised. The appellant being an employee of M/s. IAL Logistics India Ltd was acting under the instructions of his employer. We may consider the decisions cited in this regard. In the case of Sterlite Optical Technologies Versus CC and CE, Aurangabad 2005 (188) ELT 2010 (T-Mumbai), the Tribunal set aside the penalties imposed on the employees under Rule 26 of Central Excise Rules, 2002, where they allowed the EOU facilities to be used for the benefit of the domestic unit. In Carpenter Classic Exam Pvt. Ltd. versus Commissioner of Customs, Bangalore - 2006 (200) ELT 593 (T-Bang.), the Tribunal set aside the penalty imposed on the employee of the appellant firm on the ground that he had acted under the directions of his bosses and there is no evidence to show that he personally benefited from the under-invoicing. The said order has been affirmed by the Supreme Court as reported in 2019 (235) ELT 201. Similar view has been taken in Associated Plastics and Rayons versus Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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