Custom, Excise & Service Tax Tribunal
Zubair Shaikh vs The Commissioner Of Customs-Nhava ... on 31 March, 2023
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
WEST ZONAL BENCH
CUSTOMS APPEAL NO: 86285 OF 2020
[Arising out of Order-in-Appeal No: 1179 (CAC)/2020(JNCH)/Appeals dated
12th October 2020 passed by the Commissioner of Customs (Appeals), Mumbai -
II.]
Zubair Shaikh
53/63, Lekhraj Mansion, Room No. 17A/B
Raghuraj Maharaj Street, Mumbai - 400003 ... Appellant
versus
Commissioner of Customs
NS-III Jawaharlal Nehru Customs House, Nhava Sheva
Uran, Dist: Raigad - 400707 ...Respondent
APPEARANCE:
Shri Anil Balani, Advocate for the appellant Shri Ram Kumar, Assistant Commissioner (AR) for the respondent CORAM:
HON'BLE MR C J MATHEW, MEMBER (TECHNICAL) FINAL ORDER NO: A /85517 /2023 DATE OF HEARING: 31/03/2023 DATE OF DECISION: 31/03/2023 This appeal of Mr Zubair Shaikh lies against imposition of penalty of ₹ 8,00,000/- under section 112(a) of Customs Act, 1962, and of like amount under section 114AA of Customs Act, 1962, following confiscation of goods purportedly imported by him, which C/86285/2020 2 was upheld in order1 of Commissioner of Customs (Appeals), Mumbai - II with the finding that the imported goods had been mis- declared rendering them liable to confiscation under section 111(d) and section 111(m) of Customs Act, 1962 and that from the statements of several persons, including of the appellant, it had been established that the 'import export code (EC)' had been procured illicitly.
2. According to Learned Counsel for the appellant, the impugned goods were yet to be entered for import under section 46 of Customs Act, 1962 when seized by the investigating authorities and proposed for confiscation. He contended that the appellant had nothing to do with the import inasmuch as the goods were consigned to M/s Petals Traders. It was also pointed out by the Learned Counsel that the customs authorities had invoked Prohibition of Benami Property Transactions Act, 1988 for charging the appellant with consequences that, normally, devolve on importer of offending goods. He relied upon the decision of the Tribunal in Vijaybhav v. Commissioner of Customs, Airport, Mumbai [2014 (313) ELT 506 (Tri.-Mumbai)] and in Bashayir v. Commissioner of Customs, Chennai [2006 (206) ELT 541 (Tri.-Channai)] and of the Hon'ble High Court of Bombay in Commissioner of Customs & Excise, Goa v. Kabul Textiles (LLC) [2006 (206) 1173 (Bom.)] to sustain his argument that no penalty would lie against entities unless goods had been entered for import. 1 [order-in-appeal no. 1179 (CAC)/2020 (JNCH)/Appeals dated 12th October 2020] C/86285/2020 3
3. According to Learned Authorised Representative, the appellant had admitted to illicit procurement of 'import export code (IEC)' and that the goods did belong to the appellant. He also pointed out that the imports, effected without being in possession of valid pre-requisite under Foreign Trade (Developemnt & Regulations) Act, 1992 waranting confiscation for contravening prohibition under any other law for the time being in force, were rightly subjected to confiscation under section 111(d) of Customs Act, 1962.
4. On a specific query, it was informed that none of the other persons involved in the impugned order had filed appeal before the first appellate authority.
5. It is on record that bill of entry had not been filed under section 46 of Customs Act, 1962 for imported of the said goods. Accordingly, scope for invoking of section 111(m) of Customs Act, 1962 for confiscation of goods arising from misdeclaration and, in the absence of documents available on record, the ingredients for invoking of section 114AA of Customs Act, 1962 did not exist. All documents available till then are limited to those mandated by section 30 of Customs Act, 1962 upon carrier of goods. Penalties are not imposable on the presumption that goods are likely to be misdeclared or to be attempted to be cleared against false declaration and incorrect material.
6. Confiscation under section 111(d) appears to have been C/86285/2020 4 invoked in a routine manner inasmuch as the impugned goods are not prohibited for import. Until bill of entry is filed, the identity of the importer, and lack of 'import-export code (IEC)' will not be known. Though adjudicating authority has invoked the provisions of Prohibition of Benami Property Transactions Act, 1988 without any empowerment to do so, and ostensibly to bring the appellant within the scope of Customs Act, 1962 in circumstances initiating proceedings even before bill of entry was filed, that law, intended to be invoked for prosecution as a consequence of holding property in 'benami' as well as for interdiction of such property, exists as an independent statute not amenable for concatenation with Customs Act, 1962 by any enabling provision.
7. In view of the above, the impugned order, failing to sustain under law, is set aside and appeal allowed.
(Dictated and Pronounced in Open Court) (C J MATHEW) Member (Technical) */as