TaxTMI 
TaxTMI 
2025 (7) TMI 88
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....ssed to duty amounting to Rs.50,500/-, which had been paid in the system on 05.06.2017 by e-payment. The goods were examined on 05.06.2017 and examination report was as follows: opened 5% for appraisement, description correct, found in order as per invoice which was signed by the EO. Out Of Charge (OOC) stamp indicated that OOC in respect of the goods were given by the Appraiser on 05.06.2017. 2.1. On interception and subsequent Panchnama drawn by DRI on 05.06.2017 the goods were found to constitute 518400 sticks of Gudang Garam Cigarettes (Indonesia) in 36 Cartons, 80,000 sticks Dunhill Switch Cigarettes (Switzerland) in 4 Cartons and 380 pairs of Plastic Slippers in 10 Cartons, with total ascertained value of Rs. 61,82,000/-. The goods against the Bill of Entry were seized under Section 110 of the Customs Act 1962. 2.2. A Show Cause Notice dated 01.12.2017 was issued under Section 124 of the Customs Act, 1962, proposing confiscation of the impugned goods and penalties under Sections 112(a), 112(b) and 114AA, inter alia, on the appellant. 2.3. The matter was adjudicated vide the impugned order, whereby the ld. adjudicating authority has imposed penalties of Rs.3,00,000/- ....
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....s in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any manner dealing with subject goods. It is also contended that the ingredients for invocation of Section 114AA do not exist in this case and hence no penalty imposable under this Section. 3.3. The Ld. Counsel for the appellant further pointed out that in a case where penalty had been imposed under Sections 112(a), 112(b) and 114AA ibid. on the appellant, the Division Bench of this Tribunal has set aside the penalty imposed on the appellant, vide Final Order No. 76182 of 2025 dated 02.05.2025. 3.4. Therefore, the appellant submits that Section 112(a)(i), 112(b)(i) and 114AA of the Act had no application against him in the facts and circumstances of the case and accordingly, prays for setting aside the penalties imposed on him. 4. The Ld. Authorized Representative of the Revenue submits that the appellant had close nexus with Mayur Mehta, a Customs Broker, his employee Monika Vora, Navneet Kumar (Deputy Commissioner) and the Customs Broker, i.e., M/s. Sadguru Forwarders Pvt. Ltd.; that they together operated as a syndicate and facilitated clearance of mis-....
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....y to bring in mis-declared/contraband goods which are liable to confiscation under the Customs Act, 1962 and thereby he rendered himself liable for penalty under Customs Act, 1962. It further appears that, Sri. Sajal Das knowingly and intentionally used or caused to be made fake/forge documents which do not correspond to the material imported by Pasific Enterprises. Therefore, it appears that Shri Sajal Das had rendered himself liable for penal action under Section 112(a), and Section 112(b) of the Customs Act, 1962 for his act of omission and commission." 6.2. From the above, I find that although the allegation of the Department is that the appellant facilitated the clearance of the mis declared goods, there is no evidence on record to substantiate this allegation. It has also been alleged that the appellant has allowed Nasiruddin to use their office and computer. In this regard, I find that allowing usage of office premises and computer cannot be construed as connivance in the alleged offence. I also take note of the appellant's submission in this regard that he has no objection with regard to the confiscation of the goods and the order for destruction of the cigarettes seized....
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....pellant has connived to mis declare the goods imported. Thus, we observe that the findings in the impugned order by the Ld. adjudicating authority is only on the basis of assumptions and presumptions without any evidence to support it. 6.3. Another evidence adduced in the notice is the alleged deposit of Rs. 5,00,000/- by Pasific Enterprises to the account of Nirmala Bala Trading firm related to the appellant. From the records, we find that M/s. Nirmala Bala Trading Co. is a proprietorship firm of Chandan Das, who is the brother of the appellant. The said firm is in the business of dealing in DEPB scrips and has no relation with the appellant's business. The appellant is the sole proprietor of M/s. K.C. Das & Co. and a partner of the firm Indo Friends Agency, both independent Customs Brokers and were registered, inter alia, at Kolkata Port and Airport. We observe that none of them were involved with the subject imports/case and no payment has been made to the said Firms. It is not known as to how the adjudicating authority has linked the deposit of Rs. 5,00,000/- by Pasific Enterprises to the account of Nirmala Bala Trading to the appellant. Thus, we observe this findi....
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....es for imposition of penalty for importation of goods by any person who acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods, which he knows or has reason to believe are liable to confiscation under Section 111 of the Act. We observe that there is no material evidence available on record to establish that the appellant is concerned with any of the acts mentioned in the said section, which make the imported goods liable to confiscation under Section 111 of the Act. The penalty under this section cannot be imposed on the basis of assumptions and presumptions. Accordingly, we hold that the appellant has not fulfilled any of the conditions required for imposition of penalty under Section 112(b) of the Customs Act. 1962 and hence, we hold that penalty imposed on the appellant under section 112(b) is not sustainable and hence we set aside the same. 6.8. Section 114AA of the Act provides for penalty upon a person if he knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which ....