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TMI Blog2025 (4) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... rcepted export consignments of M/s Fusion Overseas at ICD Khodiyar. They examined 126 boxes of export cargo under 6 shipping bills said to contain "Super Ceramic Coating (Pro Polish)". On examination, they found difference not only in quantitative terms but also the goods were highly over valued to the extent of 22 times. Shri Rajiv Arya and Shri Satyavir Singh are the partners of the export firm. The Customs officials conducted inquiry against the exporter by searching his declared premises. They recorded the statements of Shri Rajiv Arya (partner) under Section 108 of the Customs Act, 1962 wherein he claimed that one Shri Prince having Mobile No. 9818498910 and 9966745754 is the real beneficiary of the firm. The inquiry conducted at the end of M/s Dhanlabh Logisitics, Ahmedabad, (CHA in the case) revealed that he had received the invoices, packing list, KYC etc., of the exporter through M/s Aeromar Logistics (I) Pvt. Ltd., Ambawadi, Ahmedabad. Upon inquiry, M/s Aeromar Logisitcs (the appellant in this case) informed that they had received all export documents through M/s Mass Shipping Agencies, Naraina, New Delhi, whose proprietor was Smt. Manju Kumar Jha. The summons issued to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted against the interest of Revenue. They have no obligation under the Customs law to fulfill any conditions as prescribed for the CHA under CBLR, 2018. They have acted as intermediary who received documents from third party and forwarded to the CHA who was obliged to comply with all the obligations under Customs Broker Licensing Regulations, 2018 read with the Customs Act. The obligations under the Customs Act are on the exporter and the CHA but not on the intermediary. The impugned order is violating principles of natural justice as none of the referred case laws have been considered and discussed by the learned Appellate Authority. No case has been made out against the appellant for imposition of penalty under Section 114(iii) and 114AA of the Customs Act, 1962 as the appellant has neither signed nor used any declaration, statement or document intentionally or unintentionally. There is no finding as to how goods have become liable to confiscation under Section 113 of the Customs Act only because the documents have been received from a third party and forwarded to the CHA. He cited the decision of the Tribunal in the case of PD Prasad & Sons Pvt Ltd. vs CC (Export-Delhi) 2017 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods were ultimately delivered to the buyers at Iran, there is no justification for imposing penalty upon the appellant, therefore, the penalty imposed on the appellant is set aside". 6. In the case of Rajeev Khatri Vs. Commissioner of Customs (Export) at (2023) 9 Centax 412 (Del.), Hon'ble High Court of Delhi has given following findings: - "30. Thus, indisputably, persons who have committed the acts of omission or commission in relation to 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 offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make person of first degree in relation to the act or omission strictly liable. Persons who are not directly involved in the act or omission to act, which has led the goods becoming liable for confiscation cannot be made liable unless some knowledge is attributed to them. Therefore, it 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." 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 Mac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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