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Issues: Whether penalty under section 112(a)(ii) of the Customs Act, 1962 was sustainable against the customs broker for not informing the department about the pendency of an earlier show cause notice when the broker had sought first check examination and the goods were examined and classified accordingly.
Analysis: The appellant had requested first check assessment on the importer's instructions, and the departmental officer examined the goods and verified the classification. The only basis for penalty was the alleged non-disclosure of the earlier pending show cause notice. There was no legal obligation on the customs broker to intimate the pendency of that notice, especially when the notice had itself been issued by the department. In these circumstances, the broker's conduct could not be treated as aiding or abetting any act or omission rendering the goods liable to confiscation under section 111 of the Customs Act, 1962. The view was consistent with the principle that a customs broker who seeks first check and facilitates examination cannot be penalized merely because another person's classification position was under dispute.
Conclusion: The penalty under section 112(a)(ii) of the Customs Act, 1962 was not sustainable and was set aside in favour of the appellant.
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