TaxTMI 
TaxTMI 
2025 (7) TMI 858
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....ppellants were alleged to have aided and abetted in the clearance of the imported goods which were cleared duty-free, into the local market. Further they had without obtaining the requisite authorisations from the importer and without verifying the signatures of the authorized persons of both the High Sea Seller and buyer firm, presented the HSS agreement before the authorities for clearance of the goods and after clearance from the customs, the consignments have been booked to Bangalore instead of Surat at the instance of the High Seas Seller. Therefore it appeared that the appellants' act of omission / commission have rendered the goods liable for confiscation under sec. 111(o) of the Customs Act, 1962 and the appellants were liable to penalty under sec. 112(a) of the Act for abetment. After due process of law, the Ld. Commissioner held that the appellants are liable for penalty and imposed penalty of Rs.7,00,000/- each under sec. 112(a). Hence the present appeals. 3. The Ld. Advocate Shri S. Murugappan and Shri Mohamed Uvasullah Muhsin, appeared for the appellants and Ld. Authorized Representative Shri Sanjay Kakkar appeared for the respondent. 3.1 The Ld. Counsel for the ....
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....f the Customs Brokers Licence. Hence the Regulations carves out a special treatment for acts of delinquency by the CB. Such actions are in essence disciplinary proceedings to ensure compliance with the regulatory provisions. [See: SMS Logistics Vs Commissioner of Customs (General), New Customs House, New Delhi - 2024 (387) E.L.T. 157 (Del.); M/s. Raj Brothers Shipping Pvt. Ltd. Vs Commissioner of Customs (Import) - CESTAT, Chennai, FINAL ORDER NO. 40631/2025, Dated: 20.06.2025]. However, any person including a CHA may be involved in blame worthy acts with the intention of helping the importer/ exporter evade payment of duty, by entering into a conspiracy/ collusion with an importer/ exporter or abetting them to defraud the exchequer etc. In such cases the cause of action is different from the role of a CHA under the Regulations and penal action can be taken under the Customs Act 1962. Moreover, if violations of both the laws are evident then action taken under the Customs Act shall be without prejudice to the action taken under the Regulations and the proceedings can, if the situation warrants, go on simultaneously. 6. When the legislature makes a special law, the presumption is....
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....onditions of Bond given for import of goods under Advance Authorisation Licences at the port of importation in as much as the goods imported under Advance Authorisation were sold in as it condition in market i.e. the High Sea Sellers without consuming the same in the manufacturing of any resultant goods and without fulfillment of export obligation and evaded duty by way of willful mis- statement and suppression of the facts. (emphasis added) The role of the appellants do not find a mention in the said para. The actions of the appellant are reflected at para 61 which is also reproduced below; "The Role of Custom House Agents -CHAs: 61. The representatives of the Customs House Agents namely M/s. Meticulous Forwarders, Chennai and M/s. Masterstroke Freight Forwarders Pvt. Ltd., Chennai admitted in their respective statements that without knowing the proprietor of the importing firm i.e. M/s Kalp Impex, without obtaining the Authorisations from the importer and without verifying the signatures of the authorised person of both the High Seas Seller and buyer firm they had presented the HSS agreement before the designated authority of Customs for Customs Clearance at ....
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....hey knew or had reasons to believe that the same were liable to confiscation under Section 111(d) and (o) of the Customs Act, 1962. They have thereby, rendered themselves liable for penal action under Section 112(a) of the Customs Act. (emphasis added) 8. The penal provision of section112(a) of the Customs Act, 1962 which has been invoked in the impugned order, is reproduced below for ease of reference; 112. Penalty for improper importation of goods, etc. Any person,- (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or (b) . . . . (emphasis added) 9. An agreement between two or more persons to do an illegal act or legal acts by illegal means is a criminal conspiracy. The impugned order speaks of "active collusion" with the High Sea Sellers. Collusion involves a 'conspiracy' or an act of 'abetment'. 10. It is seen that words like 'omission' and 'abets' appearing in section 112(a)are not defined under the Customs Act, 1962. When a word is not defined under a Central Act, its ....
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.... agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. (emphasis added) The above provisions apart from showing the requirement of mens rea also involve a 'common intention'. Hence to show 'active collusion' it has to also be shown that there was a common intention amongst the alleged collaborators involved in the evasion of duty. Further abetment involves a process of instigating or aiding another person to do a particular thing. 11. It is true that the provisions of the IPC are not directly applicable to the Customs Act, 1962. The two Acts operate in their own fields. One deal with criminal matter and the other with issue of taxation, where mens rea may not always require to be shown for the imposition of penalty. Further, it is seen that sec. 112 of the Customs Act, 1962 speaks of 'omission' only whereas section 107 of the IPC refer to 'illegal omission'. Hence there is a differe....