Custom, Excise & Service Tax Tribunal
S.M. Taufeek vs Commissioner Of Customs, Chennai Iv on 21 October, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/40895/2016
(Arising out of Order-in-Appeal C. Cus. II No. 289/2016 dated 29.3.2016 passed by the Commissioner of Customs (Appeals II), Chennai)
S.M. Taufeek Appellant
Vs.
Commissioner of Customs, Chennai IV Respondent
Appearance Mrs. J. Ragini, Advocate for the Appellant Shri K. Veerabhadra Reddy, JC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Date of Hearing / Decision: 21.10.2016 Final Order No. 42043 / 2016 Appellant says that this appellant although was in the chain of import linking the importer and the CHA, he has no role to cause evasion of duty. Therefore, levy of penalty of Rs.4,50,000/- each under section 112(a) and Section 114AA of the Customs Act, 1962 is unwarranted and unjustified.
2. Revenue on the other hand says that when there were forged documents and subterfuge to Revenue done through e-mail correspondences that was recovered in the course of investigation, that establishes the role of the appellant bringing the importer and CHA into the chain of commitment of offence. Accordingly, there should not be interference to the appellate order passed by Learned Commissioner (Appeals). Taking the gravity of offence into consideration, quantum of penalty imposed is justified under both the sections.
3. Heard both sides and perused the records.
4. The findings by the authorities below are as under:-
(a) The appellant was a vital chain linking the importer as well as CHA and was in connivance with them.
(b) The invoice, packing list and Bill of Lading as well as country of origin certificate showed that there were mis-declaration of the description of the goods.
(c) The goods appearing in the country of origin certificate was polyester knitted fabric whereas in the invoice and packing list the goods described were polyester stock lot knitted fabric.
(d) The value declared was on the basis of the mis-declaration of the description of the goods. That was obviously undervalued.
(e) The transaction value was unreliable.
(f) The importer in his statement stated that there were forged documents by the appellant and such forged documents were handed over to CHA for filing of Bill of Entry.
(g) The e-mail dated 17.6.2013 recovered in the course of investigation demonstrated that he was the perpetuator of fraud guiding the importer to import 50% prime material and 50% stock lot and mixing the same in the agents warehouse in China as well as to import that to suffer duty to the extent of Rs.6 to 7 lakhs per container.
(h) The appellant was in the business of freight forwarding and has conscious knowledge about the nature of the goods, as well as impact thereof on the import duty.
5. The evidence as above came to record did not detach the appellant from his hand in glove in commitment of offence in absence of any evidence to the contrary led by appellant. Accordingly, commitment of breach of law by the appellant under section 112(a) of Customs Act, 1962 has been established being intimately concerned with the import and being a conduit in commitment of breach of law. This section deals with the cases of confiscatory goods where abetment goes to the root of the matter. The evidence above establishes abetment of the appellant in causing evasion and in connivance with the importer as well as CHA. Accordingly, when the breach of law is patent from record, penalty of Rs.4,50,000/- (Rupees four lakh fifty thousand only) imposed on the appellant under section 112(a) of the Customs Act, 1962 appears to be reasonable and there shall be no interference by the Tribunal.
6. Added to the above commitment of offence, breach of law under section 114AA has also been alleged. The manner of causing evasion by appellant was with conscious approach defrauding customs. The evidence aforesaid gathered by investigation could not be ruled out by appellant. His contumacious conduct was proved. Section 114AA is applicable when documents are falsified with conscious knowledge to cause evasion. In this case, appellants questionable modus operandi and oblique motive demonstrated its involvement in causing evasion. Therefore, penalty of Rs.4,50,000/- (Rupees four lakh fifty thousand only) imposed under section 114AA of Customs Act, 1962 on the appellant does not require any lenient consideration for which that is also upheld. It may be stated that Section 112 (a) and Section 114AA are mutually exclusive and operate on their own field. Therefore penalties are imposed under each section independently.
7. While passing the above order, the quantum aspect has been examined repeatedly with the gravity of offence committed. On the basis of evidence, material facts and attendant circumstances, it is considered proper that any leniency in reduction of penalty will be a bonus to breach of law and that shall be an inspiration to the perpetrator of offence. The authority having exercised his authority most reasonably, following the ratio laid down by Honble Supreme Court in the case of Commissioner of Customs, Mumbai Vs. Mansi Impex reported in 2011 (270) ELT 631 (SC), no reduction of penalty under any of the sections is considered proper.
8. In the result, appeal is dismissed in toto.
(Dictated and pronounced in open court) (D.N. Panda) Judicial Member Rex 4