2022 (9) TMI 862 - AT - Customs

Customs Act Penalties Overturned Due to Lack of Evidence and Procedural Violations

M/s. United Custom House Agency, Shri Raj Kumar Shaw, Proprietor, M/s. Sundary Fashion, and Shri Prakash Ghosh, Proprietor, M/s. Overseas Shipping Agency, Private Limited Versus Commissioner of Customs (Preventive), Kolkata

The Tribunal set aside the confiscation of goods and vehicles, as well as the penalties imposed under Sections 114(iii) and 114AA of the Customs Act, ... Illegal export - synthetic fabric materials - it is alleged that exporters were attempting to smuggle synthetic fabric materials to Bangladesh through Petrapole LCS, without declaring the same by tagging some illegal consignments with genuine export of similar goods in smaller quantity - Confiscation of goods loaded in two vehicles - redemption fine - penalty - HELD THAT:- The proceeding was initiated by DRI with detention of certain consignments in Central warehousing Corporation at Petrapole including the two vehicles loaded with export consignment of the appellant exporter on 04.8.2010. On the same day the office belonging to the C&F Agent M/s Overseas Shipping Agency was also visited where G-card holder of the Custom House agent was present. During pendency of investigation goods were provisionally released to the exporter on furnishing of bond. Show Cause Notice was issued after a long gap on 29.6.2015 alleging violations of Section 33, 34, 40(a) and 50 of the Customs Act, 1962 which are solely linked with examination of the export cargo by the Customs. This shows that the Revenue did not find sufficient evidence in support of its initial intelligence that the export was intended for getting undue benefit of export incentive schemes by overvaluation - it is found from the records that both CWC and Customs confirmed that loaded trucks are allowed to be parked in the CWC and it is not mandatory to allow entry only after assessment of the Bill of Export. Examination of consignment as per customs norms is conducted inside CWC parking before ‘Let Export order’ given by the Proper Officer of Customs. It is not disputed that trucks loaded with goods were parked in CWC parking which is notified as custodian of Import and export goods and that those were recorded in their books and that clearance for export could be allowed after examination and under physical supervision of the Customs Officer right from the CWC parking to Physical border, gives no space for doubt that it could be smuggled. The proceeding is based on the allegation that the goods loaded in WB23 4778would have been exported under cover of another vehicle in respect of that the bill of export was assessed by the Customs Officer. The trucks parked in CWC cannot be treated as foreign going vehicle until Bill of export is submitted and examination of the cargo is physically done by the customs - Other findings on procurement of documents produced by the exporter and inspection by SGS are not relevant as overvaluation and consequential gain is not alleged. In consideration of the factual matrix of the case, it is found that the Revenue has totally failed to adduce tangible evidence in support of the allegation to sustain the impugned order of confiscation. Penalties upon the CHA and the C&F Agent each under Sections 114 (iii) and 114AA of the Customs Act, 1962 - HELD THAT:- The existence of, and the contents in, that document does not have any significance to, or nexus with, the situation referred to in Section 114AA of Customs Act, 1962. It certainly could not have had anything to do with the uncleared consignments as Shipping Bill in respect of the consignment loaded in WB23 4778 was yet to be filed. There are no specific charges in the SCN which directly implicates the appellants to have themselves caused falsification of any document. Also nowhere in the discussion and finding portion of the adjudication order has the authority discussed or justified the imposition of penalty under Section 114AA ibid in the matter - further, the Commissioner has wrongly come to the conclusion that the C & F Agent is involved in the illegal export whereas he is only a Carrying and Forwarding Agent and has been facilitating transporting, loading and unloading on the basis of the documents furnished by the exporter. The allegation against the C & F Agent has not been corroborated through any financial investigation and one cannot be punished on the basis of assumptions and presumptions. Appeal allowed. Issues Involved:1. Confiscation of goods and vehicles.2. Imposition of penalties under Sections 114(iii) and 114AA of the Customs Act, 1962.3. Alleged procedural violations under Sections 33, 34, 40(a), and 50(1) of the Customs Act, 1962.4. Validity of parallel invoices and their implications.5. Procedural lapses in the issuance of the Show Cause Notice (SCN) and subsequent legal proceedings.Detailed Analysis:1. Confiscation of Goods and Vehicles:The Adjudicating Authority ordered the confiscation of goods loaded in vehicles WB-23 X 1615 and WB-23-4778, along with the vehicles themselves. The goods in WB-23 X 1615 were valued at Rs. 6,51,229 and those in WB-23-4778 at Rs. 66,87,394. The vehicles were given an option to redeem by paying fines of Rs. 2 Lakhs and Rs. 20 Lakhs respectively for the goods, and Rs. 25,000 and Rs. 50,000 respectively for the vehicles. The confiscation was based on the belief that the goods were being smuggled to Bangladesh by overvaluing them to gain undue export incentives.2. Imposition of Penalties:Penalties of Rs. 5 Lakhs each were imposed on the exporter, the Customs House Agent (CHA), and the Carrying & Forwarding (C&F) Agent under Sections 114(iii) and 114AA of the Customs Act, 1962. The penalties were imposed without apportioning the quantum. The Tribunal found that the penalties were arbitrarily decided without sufficient evidence to support the allegations.3. Alleged Procedural Violations:The SCN alleged violations of Sections 33, 34, 40(a), and 50(1) of the Customs Act, 1962, which pertain to the unloading and loading of goods at approved places, supervision by customs officers, and the requirement of duly passed export documents. However, the Tribunal found that the goods were parked in the Central Warehousing Corporation (CWC) and were under proper supervision, thus negating the allegations of procedural violations.4. Validity of Parallel Invoices:A parallel invoice with the same number but different quantities was found, which triggered the investigation. The Tribunal noted that no Panchnama was drawn to show the recovery of the parallel invoice, and its authenticity was not established. The CHA and C&F Agent stated that the invoice might have been intended for submission to Bangladesh Customs to reduce import duty, but this was not corroborated by reliable evidence.5. Procedural Lapses in Issuance of SCN and Subsequent Proceedings:The SCN was issued almost five years after the seizure without seeking an extension of time from the appropriate authority. The Tribunal observed that the delay and lack of sufficient evidence vitiated the legal proceedings. The investigation did not corroborate the initial belief that the export was intended to gain undue export incentives through overvaluation.Conclusion:The Tribunal found that the Revenue failed to provide tangible evidence to support the allegations. The penalties imposed on the CHA and C&F Agent under Section 114AA were deemed inappropriate, as this section is intended for fraudulent exporters, not intermediaries. The Tribunal allowed the appeals, setting aside the order of confiscation and penalties, and granted consequential relief to the appellants.