TaxTMI 
TaxTMI 
2025 (8) TMI 1483
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.... purported misuse of Notification No. 50/2017- Customs dated 30.06.2017 (hereinafter referred to as the "Exemption Notification") by M/s. Eastern Coalfields Limited (hereinafter referred to as "ECL" or "importer"), a subsidiary of Coal India Limited (hereinafter referred to as "CIL"). It is the case of the Revenue as forthcoming from Show-cause Notice dated 26.11.2021 (hereinafter referred to as the "impugned Notice") that ECL had imported 18 nos. of Dumpers from Caterpillar under a contract dated 02.12.2019. The Appellant was not a party to the original contract and was assigned contract fulfilment for the 18 dumpers vide letter dated 28.07.2020 (refer Para 45.2-IP 95 of OIO/PB Vol 1). The said contract, inter alia, provided for the supply of dumpers in a completely knocked down condition along with installation and commissioning thereof in India (refer Para 22(1) - IP 20 of OIO/PB Vol 1). The role of the Indian agent was two-fold i.e. (i) facilitate the import of subject dumpers (refer Para 45.1-IP 93 of OIO/PB Vol 1] against an agency commission of 2% of the FOB value [refer Para 45.2(iv) -IP 95 of OIO/PB Vol 1); and (ii) erection and commissioning of dumpers against a considera....
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....sment, no allegations of contumacious conduct or misdeclaration can lie against the Appellant and no malafide intent could be attributed insofar as the declaration is concerned. Reliance in this regard is placed on Sahil International vs CC [2019 (369) ELT 1397 (Tri.-Mumbai)], Devraj M. Salian vs. Commissioner of Customs (I), Mumbai [2015 (316) ELT 139 (Tri. - Mum.)] and Canon India Pvt Ltd vs. Commissioner of Customs [2021 (3) TMI 384-SCJ. Moreover, penalty u/s 112(a) of the Act cannot be imposed upon the Appellant in absence of any element of mens rea in the impugned Notice and impugned Order. Reliance in this regard is placed on Commissioner of Customs vs. Trinetra Impex Private Limited [2020 (372) E.L.T. 332 (Del.)], M.S. Exim Services vs. C.C., Ludhiana [2021 (377) E.L.T. 615] and Commissioner of Customs (EP) vs. P.D. Manjrekar [2009 (244) ELT 51 (Bom.). ii. Evidences relied upon by the Adjudicating Authority have no evidentiary value insofar as the recorded statements were not obtained in the manner prescribed under Section 138B of the Customs Act, 1962 and the chartered engineer certificate has been discredited at the time of cross-examination. Moreover, the expert ....
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....e Indian Contract Act, 1872 clarifies that its provisions do not override any special statute. Accordingly, the Customs Act prevails over the Contract Act in this context. Reliance in this regard is placed on M/s. K.Steamship Agencies Pvt. Ltd. vs. M/s. Balaji Dekors, The Commissioner of Customs (Imports), The Deputy Commissioner of Customs (SIIB), Chennai (2024 (8) TMI 31). iii. The judgment in the case of Sea Bridge Maritime Agencies Pvt. Ltd. vs CC, Mumbai [1999 (108) ELT 250 (Tri.-Mumbai)) is squarely applicable in the present case. The said case dealt with the imposition of penalty u/s 112 of the Act on the agent and it was held that there can be no penalty on the local agent when the principal himself was not penalised. i. For the same reasons, which are not being repeated for reasons of brevity, it is submitted that there arises no occasion for imposition of penalty under Section 114AA of the Act. ii. Penalty under Section 114AA of the Act is imposable only in those situations where exports benefits are claimed without exporting the goods and by presenting forged documents and not in cases of importation. Reliance in this regard is placed on the Tw....
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.... we also note that in terms of Section 111(m), the goods can be rendered liable for confiscation if the goods "do not correspond in respect of value or in any other particular, with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54". The appellant is nowhere involved in the declaration of the specification of the goods in question. In these circumstances, we find that the provisions of Section 111(m) of the Act are not applicable to the appellant and accordingly, we hold that penalty under Section 112(a) of the Act is not imposable on the appellant. 12. We further take note of the fact that in the impugned order itself, the ld. adjudicating authority has recorded that the appellant has argued that there is no mis-declaration of the goods in the Bills of Entry and have also relied on the definition of "entry" as defined under Section 2(16) of the Customs Act, 1962, which reads as given below: - "entry", in relation to goods, means an entry made in a bill of entry,....
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....e claimed without exporting the goods and by presenting false documentation, and not in the case of importation. Admittedly, this is a case of importation of goods and thus, the provisions of Section 114AA of the Act are not invocable, as the same have been inserted to penalize exporters who claim undue export benefits. 19. The same view has been taken by this Tribunal in the case of Shri Haren Choksey Vs. Commissioner of Customs (Port), Kolkata [(2024) 10 TMI 1354 - CESTAT, Kolkata] Wherein this Tribunal has observed as under: - 11. We find that the issue has been dealt by this Tribunal in the case of A.V.Gobal Corporation Pvt. Ltd. (Supra) wherein this Tribunal observed as under: "Coming to the penalty imposed under 114AA the objective of Section 114AA as was subsequently incorporated, is apparent from 27th report of the Standing Committee on Finance (2005) which proposed this new section consequent to the deduction of several cases of fraudulent export where the exports were shown only on paper and no goods crossed the Indian boarder. The Committee opined introducing provisions of levying penalty upon 5 times the value of goods as a right deterrent the Co....