Custom, Excise & Service Tax Tribunal
M/S. A.M. Ahamed & Co vs Commissioner Of Customs, Tuticorin on 16 February, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. C/196/2011
(Arising out of Order-in-Appeal No.36/2011 dated 28.4.2011 passed by the Commissioner of Customs (Appeals), Trichy)
M/s. A.M. Ahamed & Co. Appellant
Vs.
Commissioner of Customs, Tuticorin Respondent
Appearance Shri Derrick Sam, Advocate for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent CORAM Honble Shri D.N. Panda, Judicial Member Date of Hearing / Decision: 16.02.2016 Final Order No. 40281 / 2016 Learned counsel vehemently opposes the order passed by learned Commissioner (Appeals) who has reduced the penalty imposed under section 112A of Customs Act, 1962 from Rupees One lakh to Rs.70,000/- and the penalty imposed under section 114AA of the said Act from Rupees two lakhs to Rs.1.50 laks. It is the further submission of the appellant that section 114AA is not applicable to an artificial person but to a natural person since the word person is used by that section. Further, learned Commissioner (Appeals) did not consider no involvement of this appellant in the entire undervaluation process. The appellant not having subscribed his signature to any fraudulent document, he should not be liable to penalty. If at all any penalty is imposable that shall be imposed under section 114AA on the employee but not on the employer. The vicarious liability is not the intention of that section.
3. Revenue on the other hand says that learned Commissioner (Appeals) was sympathetic to reduce the penalty from the quantum determined in the adjudication.
4. Heard both sides and perused the records.
5. When first page of the appellate order is looked into it gives an impression that the differential value sent to the Bank of India account was hawala money transaction by the undervaluation process. Once such material comes to notice, the illegality of the transaction should end with the penal consequence of law. Appellants contention that the word person used in section 114AA of the above said Act only speaks of the person who is involved. It is not necessary that a person involved in disguise shall avoid penal consequence of law when any breach of law comes to notice of Revenue to believe that the same was done by a person in disguise of a business concern. Therefore the plea of person fails when penalties were imposed against two different breach of law alleged.
6. When the magnitude of the penalty is looked into there appears no further consideration to be made since the appellant through e-mail transaction has stepped up into the shoe to benefit his client importer. Appellants involvement was consciously and knowingly which cannot be ruled out. Law is well settled that fraud is a nullity and should get burial death. Therefore, any interference to the appellate order shall be a mockery for which the appeal is dismissed.
(Dictated and pronounced in open court) (D.N. Panda) Judicial Member Rex 3