TaxTMI 
TaxTMI 
2025 (4) TMI 776
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....veer Singh] having office address at House no. 415, Block-A, Pocket-2, Sector 8, Rohini, Delhi who attempted export of "Super Ceramic Coating (Pro Polish)"from ICD Khodiyar, Ahmedabad by resorting to mis-declaration of actual quantity as well as gross over- valuation of the goods to the extent of 22 times, with intent to avail undue benefits like refund of IGST. Based on inputs, the Customs Officers examined the export consignment and found the goods to be mis-declared both in terms of quantity as well as value. Some of the bottles were empty, half filled or very less filled and various other bottles contained expired material. Accordingly, they seized the goods for violation of the provisions of the Customs Act, 1962. The appellant M/s Dhanlabh Logistics LLP, Ahmedabad acted as CHA in the matter who on behalf of the exporter filed export documents with customs authorities. The customs conducted investigation at the end of the exporter by searching their office (a hired premises) but no documents were found. The rent agreement was in the name of Shri Aman Handa, R/o A-1868, First Floor, A-Block, Jahangirpuri, Delhi. The letter /summons sent to Shri Aman Handa were received back un-....
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....mons issued to the proprietor of M/s Mass Shipping Agencies were returned back with postal authority remark "The office is locked since long". 2.3 The labels pasted on both the export consignments show the manufacturer's name as M/s Shine 'n' Care (India) Faridabad. An e-mail dated 01.01.2021,was sent to M/s Shine 'n' Care who vide letter dated 02.01.2021 informed that: "they are not Mfg. this product. May be someone have use our company name & market this product. We wish to inform you that we sold around 10 Tons of one of our regular product Dash Board Polish in 50 Kg. packing to M/s. Greek Retail Pvt. Ltd. Plot No. 158, Industrial Area, Phase 1, Panchkula, Haryana 134113..... The duration of our deal/ supply from 18.05.2018 to 07.07.2018..." 2.4 After completing the investigation, the department issued show cause notice dated 11.01.2021 to M/s K R International proposing rejection of FOB value, confiscation of the seized goods under section 113(h) and 113(i) besides penal action against the exporter, M/s Mass Shipping Agencies, Delhi and M/s. Dhanlabh Logistics under Section 114 (iii) and Section 114AA of the Customs Act, 1962. The appellant is alleged to have failed to fulf....
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.... Regulation 10(d) and Regulation 10(n) of the Customs Broker License Regulations, 2018. 5. We have gone through the case records and also heard the rival submissions. We find that the department has not recorded the statement of the appellant in either of the case and made allegations without substantiating them. Neither the show cause notices nor the orders of the lower authorities bring out as to how appellant has abetted in wrong doings of the exporter to justify imposition of penalty on him under Section 114(iii) and submitted false and incorrect material for imposing penalty under Section 114AA of the Customs Act, 1962. The SCNs invoke Regulation 13(d) and (n) of CHA Licensing Regulations, 2013 but as the matter pertains to 2020, Customs Broker License Regulation, 2018 should have been invoked. The relevant provisions are reproduced below: Regulation 10. Obligations of Customs Broker "(d) advice his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner or Customs or Assistant Commissioner of Customs, as the case may be;" "(n)....
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....er and thereby facilitated the fraudulent export and availment of undue draw back. Being a CHA, the appellant has filed shipping bill on behalf of the exporters. Needless to say, that the details of value of the goods are entered in the shipping bill as per the instructions given by' the exporter.. It is not brought out from evidence that the CHA had in any manner assisted the exporter in over invoicing the goods so as to facilitate the availment of ineligible/draw back. 9...... 10. The act of not being diligent enough in verifying the antecedents of the exporter would attract the provisions of CBLR, 2018 and it cannot be a ground for imposing penalty under Section 117 of the Customs Act, 1962. In the case of M/s. Mohak Enterprises Vs. Commissioner of Customs [Final Order No. A/12637/2023 dated 20.11.2023] 2023-TIOL-1121-CESTAT-AHM, the Tribunal held that the penalty imposed alleging that the KYC of the exporter was not verified cannot sustain. In the case of Kunal Travels (Cargo) Vs. Commissioner of Customs(I&G), IGI Airport, New Delhi [2017 (354) ELT 447 (Del.)] = 2017- TIOL-894-HC-DEL-CUS the Hon'ble High Court held that no presumption would be made against the CHA w....
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....s nowhere produced any evidence to show that the CHA knew about the incorrect classification and valuation of the goods. Otherwise also, we observe that the CHA declared the goods in the Bills of Entry based upon the information given to him by the importer and is not expected to investigate and find out the correct classification or value of the goods. In such a scenario, we find no reason to impose penalty upon the appellant. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellant."] 10. In the case of Bansal Fine Foods Pvt. Ltd. Vs. Commissioner of Customs, Mundra at 2023 5 Centax 109 (Tri.-Ahmd.), this Tribunal has held that "CHA who filed shipping bills as per documents provided by Indian exporter is not liable to penalty under section 114 and 114AA of Customs Act, 1962 when export consignment was rerouted to another country but ultimately delivered to original consignee."The relevant para 5.7 of this order is reproduced below : - "5.7 In respect of the Appeal filed by M/s. V. Arjoon, CHA, we find that the CHA had filed shipping bills as per the documents provided to him by exporter. Therefore, the bonafide act of the App....
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.... case, he aids and abets; in the former he does not. It is no criminal offence to stand by a mere passive spectator of a crime, even of a murder. Non interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to present it, and had the power so to do or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he willfully encouraged, and so aided and abetted. But it would be purely a question for the jury whether he did so or not." 34. Section 3(1) of the General Clauses Act, 1897 expressly provides that the expression 'abet'4 would have the same meaning as in the Indian Penal Code, 1860 (hereafter 'the IPC'). 35. Section 107 of the IPC explains the meaning of the expression 'abetment of a thing'. The said Section of the IPC reads as under: "107. Abetment of a thing. -A person abets the doing of a thing, who- First. - Instigates any person to do that thing; or Secondly. - Engages with one or more ot....
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....ompliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third para of Section 107." 39. In Amritlakshmi Machine Works v. The Commissioner of Customs (Import), Mumbai: 2016 (335) E.L.T. 225 (Bom.) (FB)/[216] 66 taxmann.com 49 (Bom.)(FB), a Full Bench of the Bombay High Court had considered the aforesaid issue and held that the word 'abetment' is required to be assigned the same meaning as under section 3(1) of the General Clauses Act, 1897. The court further opined as under: "31. .....Mere facilitation without knowledge would not amount to abetting an offence. Parliament has specifically included abetment in Section 112(a) of the Act, to include acts done with knowledge, otherwise the fi....