K Nithyananda Pai vs Commissioner Of Customs Cochin

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-370-13-14 dated 25/02/2014 passed by Commissioner of Customs (Appeals), COCHIN ]

[Arising out of Order-in-Appeal No. COC-CUSTM-000-APP-369-13-14 dated 25/02/2014 passed by Commissioner of Customs (Appeals), COCHIN ]

For approval and signature:

HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order? Yes 4 Whether Order is to be circulated to the Departmental authorities? Seen

K Nithyananda Pai Premier Exports, Elixir Building, Venkitaraman Road, Willingdon Island KOCHI - 682003 KERALA Appellant(s)

Sooryakala Premier Exports, Elixir Building, Venkitaraman Road, Willingdon Island KOCHI - 682003 KERALA Appellant(s)

Versus

Commissioner of Customs Cochin- CUSTOM HOUSE COCHIN - 682009 KERALA Respondent(s)

Appearance:

Mr. V.S. PREJITH, Adv E ATTORNEYS T-1 3RD FLOOR, EMPIRE BUILDING, OLD RLY.STATION ROAD, ERNAKULAM - 682018 KERALA For the Appellant

Mr. PAKSHI RAJAN, A.R. For the Respondent

Date of Hearing: 13/08/2015

Date of Decision: 13/08/2015

CORAM:

HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER

Final Order No. 21789-21790 / 2015

Per : ASHOK K. ARYA

These two appeals have come up for hearing of the stay petition. However, as the short issue only is involved, there is no need to prolong the proceedings and I decide the stay petitions as well as the appeals in todays proceedings.

2. The appeals involved against a common order-in-appeal dated 25.2.2014 passed by Commissioner of Customs (Appeals), Cochin, whereunder on both the appellants a penalty of Rs 25,000/- each has been imposed.

3. This is a case where appellant namely Ms. Suryakala allowed her IE code given under the name of M/s Premier Exports (where she is the proprietor) to be used by one Mr R.O. Koya for importation of furniture, light fittings, Hawai chappal etc. On examination, however, goods imported by the said R.O. Koya were found to conceal 49 Nos. of air pistols and 37 Nos. of air rifles totally valued at US$ 13442.81 and the same were not declared and found concealed in the cartons containing TV stands and light fittings; these items being without any arms license and import permission were liable to confiscation under Customs Act read with Section 10(1) of Arms Act.

4. From the facts it is clear that both the appellants were involved. The appellant namely Shri K. Nithyananda Pai, permitted his office to be used by CHAs clerk for fabricating invoices and the appellant namely Ms. Suryakala let her IE code to be used by the importer for importing the impugned goods which are restricted items. The appellant Ms. Suryakala also counter-signed the purchase orders submitted to Customs.

5. The learned advocate for these two appellants, Mr V.S. Prejith pleads that a lenient view should be taken for the appellants as there was no mens rea involved on the part of the appellants and they have allowed importation of the declared goods only which were not prohibited under Custom Act read with Arms Act and/or under Foreign Trade Policy. The learned advocate also says that the main importer namely Mr. Koya has given in his statement that liability for importation of impugned goods is with him and not with these two appellants.

6. Learned A.R. for the respondent Shri Pakshi Rajan however, argues that the penalty imposed on both the appellants of Rs. 25,000/- each is rather on the lower side considering the gravity of the offence involved; there is no redeeming factor to reduce the penalty as pleaded by the learned advocate for the appellants.

7. After considering the facts on record, the submissions of both the appellants as well as the pleadings of learned A.R., I find that there is no rational, sound reason and any redeeming factor giving scope to reduce the penalties imposed on these appellants. The matter is quite serious when the restricted items like 49 air pistols and 37 air rifles have been imported and the said imports were not declared; they were found concealed in 12 cartons containing light fittings and furniture. It has also come on record that invoices were fabricated by making use of the appellants office; though invoices were submitted by the other person but the office owned by Shri K. Nithyananda Pai, the appellant was allowed to be used. Consequently both these appeals are dismissed and disposed of as having no substance and reason to interfere with the impugned order-in-appeal passed by the Commissioner of Customs (Appeals) Cochin.

(Order pronounced in open court)

ASHOK KUMAR ARYA TECHNICAL MEMBER

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