2005 (2) TMI 589 - AT - Customs

Tribunal overturns penalty for Patvolk, reduces penalty for VSNL, emphasizes penalizing direct wrongdoers

The Tribunal set aside the penalty imposed on M/s. Patvolk, finding no direct involvement in the misdeclaration of cable lengths. For M/s. VSNL, the ... Penalty Issues: Recovery of duty on optical fibre cable under the Flag Project and imposition of penalties on the appellants.Analysis:1. Recovery of Duty on Optical Fibre Cable: The issue involved in this case pertains to the recovery of duty on optical fibre cable laid around Bombay under the Flag Project. The appellant, M/s. VSNL, a Public Sector Undertaking, filed a Bill of Entry for clearance of certain cables based on supplier invoices. However, no Bills of Entry were filed for the cables used in repair and replacement work on the existing cable network. Subsequently, duty demands and penalties were imposed after an investigation revealed discrepancies in the length of cable imported and utilized. Duty demands of approximately Rs. 75.00 lakhs were made, along with penalties on M/s. VSNL and M/s. Patvolk Agents. The challenge in this case was limited to the imposition of penalties, not the quantum of duties paid.2. Penalty on M/s. Patvolk: The Tribunal found that M/s. Patvolk, acting as agents of foreign suppliers, had no direct involvement in the misdeclaration of cable lengths or replacement cables. The Tribunal noted that there was no act of commission, omission, or negligence on the part of M/s. Patvolk. The plea of no mens rea and being an innocent agent were considered valid grounds to set aside the penalty imposed on M/s. Patvolk. The Tribunal also emphasized that both the principal and the agent cannot be penalized simultaneously for the same misconduct, leading to the allowance of the appeal by M/s. Patvolk.3. Penalty on M/s. VSNL: Regarding the penalty on M/s. VSNL, the Tribunal observed that while they declared the length of cables based on provided documents, they were not aware of the actual lengths used. However, M/s. VSNL supervised the repair and replacement work involving non-duty paid goods, making them liable for penalties under Section 112 of the Customs Act, 1962. The Tribunal decided not to impose a penalty on the duty recovery of Rs. 75.00 lakhs but upheld a reduced penalty of Rs. 1.00 lakh on the duty liability of approximately Rs. 7.00 lakhs for cables replaced and repaired. Thus, the appeal by M/s. VSNL was partially allowed.4. Conclusion: The Tribunal disposed of both appeals by M/s. VSNL and M/s. Patvolk, setting aside the penalty on M/s. Patvolk due to lack of involvement in the misconduct, and partially allowing the appeal by M/s. VSNL by reducing the penalty imposed on them. The judgment focused on distinguishing the roles and responsibilities of the parties involved in the import and utilization of the optical fibre cable, emphasizing the principle of penalizing only those directly responsible for any wrongdoing.