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IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI 


 Legal Robe C/980, 986, 987/10

Suketu Jhaveri

          vs

Commissioner Of Customs (Import)

(Arising out Order-in-Original No. 8/2010-11/CC(I) JNCH dated 21.09.2010 passed by the Commissioner of Customs (Import), JNCH, Raigad)

The appellants are in appeal against the impugned order wherein penalty on the appellants Suketu Jhaveri, Bhimsen Singh and Nikhil Shipping Agency have been imposed Rs.5,00,000/-, Rs.1,00,000/- and Rs.1,00,000/- respectively under Section 112 of the Customs Act and penalty of Rs.2,50,000 and Rs.50,000/- on Suketu Jhaveri and Bhimsen Singh under Section 114AA of the Customs Act, 1962.

2. The facts of the case are that the appellant Suketu Jhaveri used the IEC of some other person, therefore goods were confiscated under Section 111(d) of the Customs Act and penalties were imposed as per the adjudication order. Against the said order, appellants are before me for setting aside the penalties imposed on the appellant.

3. Shri Anil Balani, ld. counsel for the appellant submitted that appellants have not violated Section 111(d) of the Customs Act and they have also not violated 114AA of the Customs Act, 1962. Therefore, penalties on the appellant are not imposable. He also relied on the decision of this Tribunal in Atul D. Sonpal vs. CCE 2012 (275) ELT 248 and Hamid Fahim Ansari vs. CC 2009 (241) ELT 168. Therefore, he submitted that penalties on all the appellants be withdrawn.

4. On the other hand, ld. AR reiterates the impugned order.

5. Heard both sides.

6. Considered the submissions and examined the records before me. In this matter, appellants were held to be punishable as per section 111(d) of the Customs Act, therefore I have to examine whether the appellant has violated Section 111(d) or not. Section 111(d) of the Customs Act is reproduced below:

SECTION 111. Confiscation of improperly imported goods, etc.  The following goods brought from a place outside India shall be liable to confiscation: 

(a) 

(b) 

(c) 

(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;

7. On a bare reading of the said provision, it is clear that the provisions are held violated if goods imported are prohibited by the Customs Act or any other law of land. In this case, neither the description of the goods nor the quantity or value of the goods and it is also not held that they have been misdeclared by the appellant. Further, it was not found that imported goods are prohibited by any provisions of the Customs Act, Foreign Trade Policy or any other Act. Therefore, in this case, I hold that appellants have not violated the provisions of Section 111(d) of the Customs Act; therefore penalties under Section 112 of the Customs Act are not imposable on the appellant and accordingly, same are set aside.

8. With regard to the penalty under Section 114AA of the Customs Act, wherein penalty on the person can be imposed for the violation i.e. If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act. By using the IEC of some other person is not an offence under the Customs Act is held by the Hon’ble High Court of Bombay in the case of Hamid Fahim Ansari (supra). Therefore, as the appellant has not violated any provisions of the Customs Act, therefore penalty on the appellant under Section 114AA of the Customs Act is not imposable. Hence the penalties under Section 114AA of the Customs Act are also set aside.

9. In the result, impugned order qua appellants is set aside and appeals are allowed with consequential relief, if any.

(Dictated in Court) (Ashok Jindal) Member (Judicial) SR