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TMI Blog2024 (10) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... f was filed in the name of Shri Vipin Dua who had nothing to do with the consignment. However, this consignment could not have been exported unless an airway bill was also filed which is the requirement of the airlines. The airway bill was filed in the name of M/s Sikki Auto Pvt. Ltd. the fictitious company (M/s Seiki Auto a company which exists at the address and nothing to do with the consignment). Since the name of the consignor/consignee and the description of the goods in the airway bill and the baggage declaration were different, two letters were filed and the name of the consignor and consignee and the description of the goods in the airway bill were changed to match the description in the baggage declaration. Several persons were involved in this scheme and Shri Mayank Gupta s role in the entire operation is that of filing the airway bills themselves. Without the airway bill being filed by Shri Mayank Gupta in the name of a fictitious company the entire fraud would not have been possible. There is no error in the Commissioner imposing penalty on Shri Mayank Gupta under section 114 of the Act. It also needs to be noted that section 114 does not require the intent of an indiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner erred in not imposing the penalty under section 114AA of the Act on Shri Sarvesh Kumar. The value of the goods admitted to be exported was Rs. 2,00,00,306/-. Section 114AA of the Act provides for imposition of the penalty not exceeding five times the value of the goods for mis-declaration. No minimum penalty is stipulated under this section. Considering the role of Shri Sarvesh Kumar, it is found appropriate to impose penalty of Rs. 75,00,000/- on Shri Sarvesh Kumar under section 114AA of the Act. Penalty on Krishna Chandra Jha under section 114AA of the Act - HELD THAT:- There are no manner of doubt that Shri Krishna Chandra Jha was not only a co-player but had full knowledge of the entire fraud being perpetuated. Since the baggage declaration was filed in the Custom House, any mis-declaration in it with knowledge attracts penalty under section 114AA of the Act. The Commissioner erred in not imposing the penalty under section 114AA of the Act on Shri Krishna Chandra Jha. Considering his role, it is found appropriate to impose a penalty of Rs. 50,00,000/- under section 114AA of the Act on Shri Krishna Chandra Jha. Appeal disposed off. - HON BLE JUSTICE MR. DILIP GUPTA , PRES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Appeal No. 50016 of 2020 is filed by the Revenue to assail the non-imposition of penalty on Shri Ravindra Kumar under section 114AA of the Act. 4. Customs Appeal No. 50017 of 2020 is filed by the Revenue to assail the non-imposition of penalty on Shri Mayank Gupta under section 114AA of the Act. 5. Customs Appeal No. 50018 of 2020 is filed by the Revenue to assail the non-imposition of penalty on Shri Sarvesh Kumar under section 114AA of the Act. 6. Customs Appeal No. 52762 of 2019 is filed by Shri Ravindra Kumar to assail the imposition of penalty on him under section 114 of the Act. 7. Customs Appeal No. 52761 of 2019 is filed by Shri Mayank Gupta to assail the imposition of penalty on him under section 114 of the Act. 8. The proposition in the show cause notice was to impose penalties under both section 114 and section 114AA of the Act. While the Commissioner imposed penalties under both sections on Shri Prashant Jha, he imposed penalties only under section 114 on others and did not impose any penalty under section 114AA of the Act. Revenue s prayer is that penalties should be imposed on others also under section 114AA of the Act. The appeals of Shri Mayank Gupta and Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny country. In fact, he had not been living in India at all. A photocopy of his passport was with the persons who filed the baggage declaration and they misused it. 13. Scrutiny of the airway bill showed that the space in the aircraft to export the goods was booked in the name of M/s Sikki Auto Pvt. Ltd., B-11/29, Mohan Cooperative Industrial Estate, Badarpur, New Delhi. This place was investigated and it was found that there was no such company. But there was a company whose name was M/s Seiki Auto India Pvt. Ltd at the premises which manufactures certain plastic items for automobiles. The premises were searched and nothing related to any wooden material was found there. It is also found that the company had nothing to do with the booking of space and had not authorized or requested anyone to book space in the aircraft or file airway bills in its name. 14. Further investigation revealed that one, Shri Prashant Jha, provided details of consignee and shipper to Sarvesh Kumar of FSD Cargo Movers to book the air space and file the baggage declaration. Prashant Jha offered a fee of Rs. 58 per kg. to Sarvesh Kumar for the purpose. Shri Sarvesh Kumar was the Customs Broker, but he was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individuals as asserted by the Revenue and if the Commissioner erred in imposing penalties under section 114 of the Act on Shri Mayank Gupta and Shri Ravindra Kumar as asserted by these two individuals. 18. Learned authorized representative for the Revenue made the following submissions :- (a) It is not in dispute that there was an attempt to export red sanders a prohibited good-under the guise of unaccompanied baggage and baggage declaration was filed in the name of Shri Vipin Dua for the purpose; (b) It is also not in dispute that Shri Vipin Dua had no knowledge of the baggage declaration being filed and that he had not asked anyone to file a baggage declaration and that he was not even a resident of India. A copy of his passport was misused to file the baggage declaration by Sarvesh Kumar, the Customs Broker. (c) The airway bill was filed on the behalf of Prashant Jha in the name of M/s Sikki Auto Pvt. Ltd. which did not exist. Prashant Jha paid a fee of Rs. 58/- per kg. to Sarvesh Kumar to get the airway bill filed. (d) Sarvesh Kumar engaged Ravindra Kumar of Vin Global, a freight forwarder, to book the space in the aircraft and file the airway bill and paid Rs. 48/- per kg. to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta neither did nor committed an act or omission which led to confiscation of the goods. (d) There is nothing on record to show that Mayank Gupta had committed any acts which rendered the goods liable to confiscation. In view of the above, the penalty imposed on Mayank Gupta under section 114 of the Act may be set aside. Submissions on behalf of Shri Ravindra Kumar : 20. Learned counsel for Shri Ravindra Kumar made the following submissions :- (a) On being approached by Shri Sarvesh Kumar of M/s FSD Cargo Movers, the Customs Broker, the appellant provided certain documents with description as decorative product to be exported by one M/s Seiki Auto Pvt. Ltd. for booking space. He obtained the KYC of FSD Cargo Movers but not that of the declared exporter M/s Seiki Auto Pvt. Ltd. (b) As a freight forwarder Shri Mayank Gupta booked the space and issued the airway bill having No. 232 6727 4723. Later, some unknown persons tampered with the airway bill and changed the description of goods from decorative items to personal effects and the name of the exporter from M/s Sikki Auto Pvt. Ltd. to Vipin Dua. (c) Therefore, there is no evidence that Shri Mayank Gupta had done anything which re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts, I find that Shri Mayank Gupta was also played the role of abetting smuggling . 24. It is the case of the Revenue that it is apparent from the findings recorded by the adjudicating authority that Mayank Gupta was the freight forwarder who finally issued the airway bill in the name of a non-existing firm for non-available goods i.e., decorative products. He was the third and final forwarder involved in arranging space in airlines for export without obtaining the KYC of the main exporter. In fact, he issued the airway bill in the name of non-existed M/s Sikki Auto Pvt. Ltd. giving the address of M/s Seiki Auto Pvt. Ltd. The authorized representative of M/s Seiki categorically stated that the name and address of the airway bills was false and that it had not made any export to Vietnam, during 2017-2018. Therefore, Mayank Gupta used and caused to be used forged documents related to export of prohibited goods knowingly and intentionally making him liable for penalty under section 114AA of the Act. This section reads as follows :- SECTION 114AA : Penalty for use of false and incorrect material If a person knowingly or intentionally makers, signs or uses, or causes to be made, sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of Shri Vipin Dua who had nothing to do with the consignment. 30. However, this consignment could not have been exported unless an airway bill was also filed which is the requirement of the airlines. The airway bill was filed in the name of M/s Sikki Auto Pvt. Ltd. the fictitious company (M/s Seiki Auto a company which exists at the address and nothing to do with the consignment). Since the name of the consignor/consignee and the description of the goods in the airway bill and the baggage declaration were different, two letters were filed and the name of the consignor and consignee and the description of the goods in the airway bill were changed to match the description in the baggage declaration. Thus, the airway bill was filed initially in the name of a fictitious company M/s Sikki Auto and thereafter it was changed in the name of Vipin Dua who also had nothing to do with the consignment. The admitted fraud would not have been possible, but for these mis-declarations in both the baggage declaration and the airway bill. Several persons were involved in this scheme and Shri Mayank Gupta s role in the entire operation is that of filing the airway bills themselves. Without the ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra Kumar had not done anything which rendered the goods liable for confiscation under section 113 of the Act or abetted doing or omission of such an act. He was unaware of mis-declaration at any point of time. For these reasons, the penalty imposed on him under section 114 of the Act needs to be set aside. 35. On the other hand, learned authorized representative for Revenue submits that there is no error by Commissioner imposing penalty under section 114 of the Act on Shri Ravindra Kumar. However, Commissioner had erred in not also imposing penalty under section 114AA of the Act. 36. As discussed above, there is no dispute that red sanders were attempted to be exported using fake baggage declarations filed in the name of Shri Vipin Dua without his knowledge and fake airway bills filed in the name of fictitious company M/s Sikki Auto. Later, in order to align the two documents, letters were given to change the consignor, consignee and description of goods in the airway bill. Shri Ravindra Kumar was a key player in arranging the fake airway bills through Shri Mayank Gupta at the behest of Shri Sarvesh Kumar. We have no manner of doubt that but for these actions of Ravindra Kumar th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The Commissioner imposed a penalty on Shri Sarvesh Kumar under section 114 of the Act, but refrained from imposing any penalty on him under section 114AA of the Act. It is the case of the department that penalty under section 114AA of the Act should also have been imposed on Shri Sarvesh Kumar also. 40. We find in the chain of activities the role of Shri Sarvesh Kumar of FSD Cargo Movers was that of the customs broker who had obtained the details from Shri Prashant Jha and handed them over to Shri Ravindra Kumar. Goods were rendered for liable for confiscation under section 113 of the Act for mis-declaration in the baggage declaration filed under the Customs Act. Shri Sarvesh Kumar, as the customs broker, is directly responsible for ensuring that baggage declarations are filed correctly. The baggage declaration in this case was filed in the name of Shri Vipin Dua without his knowledge and the baggage declaration is certainly a document filed under the Customs Act for the purpose of transacting business under that act. We, therefore, have no hesitation in holding Shri Sarvesh Kumar was liable for penalty under section 114AA of the Act for the mis-declarations in the baggage decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act on Shri Krishna Chandra Jha. 43. In view of the above, the appeals are disposed of, as below :- (i) Appeal No. : C/52671 of 2019 filed by Shri Mayank Gupta is dismissed. (ii) Appeal No. : C/50017 of 2020 filed by Revenue seeking imposition of penalty on Shri Mayank Gupta under section 114AA of the Act is dismissed. (iii) Appeal No. : C/52762 of 2019 filed by Shri Ravindra Kumar is dismissed. (iv) Appeal No. : C/50016 of 2020 filed by Revenue seeking imposition of penalty under section 114AA of the Act on Shri Ravindra Kumar is dismissed. (v) Appeal No. : C/50018 of 2020 filed by the Revenue seeking imposition of penalty under section 114AA of the Act on Shri Sarvesh Kumar is allowed and the impugned order is modified imposing penalty of Rs. 75,00,000/- on Shri Sarvesh Kumar under section 114AA of the Act. (vi) Appeal No. : C/50015 of 2020 filed by Revenue seeking imposition of penalty under section 114AA of the Act on Shri Krishna Chandra Jha is allowed and the impugned order is modified imposing the penalty of Rs. 50,00,000/- on Shri Krishna Chandra Jha under section 114AA of the Act. 44. All appeals are disposed of as above. ( Order pronounced in open court on 18 / 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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