TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 209
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....penalty under Section 112(i) of the Customs Act, 1962 has been imposed on the Appellant who is the CHA filing the Bill of Entry. Aggrieved Appellant has filed this appeal. 3.1 We have heard Ms. Reena Rawat, Advocate for the Appellant and Shri Santosh Kumar, Authorized Representative for the Revenue. 4.1 We have considered the impugned order along-with the submissions made in the appeal and during the course of arguments. 4.2 For imposition of penalty upon the Appellant the impugned order observes as follows:- "5.4.1 I find that both the Noticee-1 & 2 did not appear before the departmental officers either to tender their statements against summons issued to them nor they cooperated with the departmental officers during the investigation. I observe that both the Noticee-1 & 2 were hand in glove in the illicit import of cigarettes. Since their acts of omission and commission in illicit import of prohibited goods have resulted in the confiscation of impugned goods under Section 111 (d) of the Customs Act, 1962, I find that both the Noticees are liable to penalty under Section 112(i), ibid. 5.4.2 I also observe that Noticee-2, vide letter dated 28.09.2022, has....
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....rthermore, if the owner or importer of goods acts through an agent, then, under Section 147, the owner or the importer shall be deemed to have not only knowledge but also presumed to have given his consent to any such thing done by an agent unless the contrary is proved for the purposes of proceedings under the Act, thus making the owner or importer liable for the acts of the agent. Similarly, under sub-section (3) of Section 147 in addition to the owner or the importer being liable for any infraction of law the agent who is authorized, impliedly or expressly by the owner of exporter shall also be liable. Under the proviso to sub-section (3) of Section 147 as noticed hereinabove, in so far as, it is a case of duty not levied or short-levied or erroneously refunded then except where the such an eventuality had occurred on account of any wilful act, negligence or default of the agent it is provided that the duty shall not be recovered from the agent unless the concerned authority as indicated under the provision comes to the conclusion that the duty cannot be recovered from the owner or the importer. 6.3 The provisions referred to hereinabove make it clear that an owner or i....
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.... of the Customs Act, 1962, which reads as under; "Section 147 in the Customs Act, 1962 ........... 9.1 A plain reading of the above Section reveals that under the authorization of owner importer or exporter, the Customs Broker may affect the Customs transaction. Subsection 147(2) provides that the liability would also be incurred by owner, Importer or exporter when the Act is done with their consent and knowledge by the CHA/CB. 10. However, sometimes these clearances of cargo are found not in accordance with law due to mis-declaration of cargo in description, quantity, classification, wrong availment of exemption notification etc. In such cases, for the omission or commission of act or rules made thereunder, penalty is imposed on Importer/exporter/owner of the goods for abetting the act of exporter. Here question arises whether penalty is imposable on Customs Broker in each and every case of omission/commission or only in cases of prior knowledge of omission/commission. 11. In most of the Customs cases, during investigation and at the time of issuance of SCN, often investigating Officers and Adjudicating Authorities are seen grappling wi....
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....scussed above. If the answer is affirmative, penalty is imposable on both CB and importer both by considering that the CHA/CB has facilitated the transaction with knowledge, means as an agent he abetted the act of principal. 15. The act of CHA/CB is covered under definition of abetment given under General Clauses Act, 1897 and IPC, 1860. The word abetment is not defined in the Customs Act, therefore the meaning assigned to it in Section 3(1) of the General Clauses Act, 1897 and under Section 107 of the Indian Penal Code, would be taken. An abetment would include by definition intentional aiding. In other words, the imposition of penalty on CB is only warranted, when there is a case of collusion/connivance. The cases where fraudulent export/import is aided by CB with foreknowledge then for facilitation of such import/export, CB must be penalized. But not in the case of mere filling of documents without any knowledge of offence or violation by CB/CHA for clearance of export/Import goods which subsequently resulted Into detection of an offence. Mere facilitation without knowledge would not amount to abetting an offence. In such cases penal clause cannot be visited against CB.....
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....aid that self-assessment is also not absolute as customs officer is authorized to conduct enquiry, verification, re-assessment under the sub clauses of Section 17 of the Act. I placed reliance on the following case laws:- 18.1 Hon'ble High Court of Delhi in the case of Commissioner of Customs V/S Shiva Khurana reported as [2019 (367) E.L.T. 550 (Del.)] held in Para 7 that: "7. This Court is of the opinion that the impugned order is justified in the facts and circumstances of the case. The reference to the verification of "antecedents and correctness of Importer Exporter Code (IEC) Number" and the identity of the concerned exporter/importer, in the opinion of this Court is to be read in the context of the CHA's duty as a mere agent rather than as a Revenue official who is empowered to investigate and enquire into the veracity of the statement made orally or in a document". 18.2 Hon'ble Tribunal of Delhi in the case of Poonia & Brothers V/s Commissioner of Cus. (Preventive), Jaipur reported as [2019 (370) E.L.T. 1074 (Tri. Del.)] that: "6. The CHA Is not supposed to verify the each and every aspect about the business of importer as the ....
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....s not imposable. 19.1 In Yogesh Kumar versus Commissioner of Customs, New Delhi (ACC, Export) Final Order No. C/A/51905/2016-CU(DB), dated 30-5-2016 in Appeal No. C/53071/2014CU(DB), the CESTAT, Delhi has held that in the case of inadvertent error in mis-declaration of quantity of export goods, penalty on CHA is not imposable in view of the finding that CHA has not abetted the exporter to intentionally declare excess garments so as to claim excess drawback, therefore penalty imposed under Section 117 of Customs Act, 1962 on CHA was set aside. 19.2 In case of Prakash Poonia Vs CC (2010) 252 ELT 442 (CESTAT), it was held that in absence of prior knowledge, CB cannot be penalized, if the bogus licenses have been produced by the Importer. In view of the above, it is clear that for penalizing CB/CHA, subsistence of animus is must. 20. Therefore, as discussed supra and after considering the facts and circumstances of the case, imposition of penalties on the appellant is not sustainable in as much as the facts do not depict any knowledge, contumacious conduct or deliberate infringement of statutory provisions by the appellant. The department too has not come for....
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....1 (129) E.L.T. 687 (Tri.-Mum.):- "5. Discounting of bills is an accepted business. The banks do it, as also the specialised discount houses. The "shroffs" in the market also do this. Discounting of bills provides immediate and ready finance to the persons in whose name the bills are drawn. This saves them the time and energy to deposit the bills in the banks and to wait for the bank to first encash the bills before making the proceeds available to them. For this facility they are willing to offer a discounting fee. To a person in the discounting business the source of the money from which the instrument was purchased, is entirely immaterial. His only concern is to see that the instrument is not a forged one or a stolen one. The fact that the instrument represents cash received by an illegal act does not negate the money value of the instrument nor does it make the person discounting the bill, a participant in the illegal acts which generated the cash used for purchasing the instrument. 6. From the evidence available on record and statement of Ghevarchand it is clear that he was a bill discounter. For imposition of penalty under Section 112(b) of the Customs Act, 1....