Shri Arockiraj vs Commissioner Of Customs (Airport), ...

(Arising out of Order-in-Appeal No. C.Cus. 384/2004 dated 31.5.2004 and C.Cus. No. 383/2004 dated 31.5.2004 passed by the Commissioner of Customs (Appeals), Chennai)

Shri Arockiraj Appellant

Vs.

Commissioner of Customs (Airport), Chennai Respondent

Appearance

Shri A.K. Jayaraj, Advocate for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent

CORAM

Honble Shri R. Periasami, Technical Member Honble Shri P. K. Choudhary, Judicial Member

Date of Hearing: 24.06.2015 Date of Pronouncement:

Final Order No. 40874-40875 / 2015

Per P.K. Choudhary

These appeals are filed by Shri M. Arockiaraj against the orders of the Commissioner (Appeals) No. C.Cus. 384/2004 dated 31.5.2004 and C.Cus. No. 383/2004 dated 31.5.2004. Both the appeals are taken up together. The issue relates to concealment and mis-declaration of goods. The adjudicating authority confiscated the goods and imposed redemption fine and penalty under section 112(a) on the importers and also imposed penalty on the appellant. Learned Commissioner (Appeals) has sustained the penalty of Rs.1.25 lakhs on the appellant under section 112(a) of the Customs Act, 1962 imposed by the original authority in adjudication of show-cause notice dated 27.9.2003. In adjudication of another show-cause notice of even date, the original authority had imposed a penalty of Rs.1.50 lakhs on the appellant and the same was reduced to Rs.75,000/- by the Commissioner (Appeals).

2. The learned counsel on behalf of the appellant submitted that the facts stated to have been admitted by the appellant were retracted. Therefore, there was no evidence against the appellant for levy of penalty. In support of his contention, he relied on the following decisions:-

(a) Collector of Customs, Madars Vs. Rotumal Bherumal  2000 (126) ELT 199 (Mad.)

(b) Badaku Joti Svant Vs. State of Mysore  1978 (2) ELT J323 (SC)

(c) Trilok Chand Jain Vs. State of Delhi  AIR 1977 SC 666

(d) State of Kerala Vs. M.M. Mathew & Anr.  AIR 1978 SC 1571

(e) Shri Ram Vs. State of U.P.  AIR 1975 SC 175

Learned counsel submitted that in the case of Shri Ram (supra), the Honble Supreme Court has held in order to constitute abetment, the abettor must be shown to have intentionally aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. He further submits that the Tribunals Stay Order dated 4.4.2006, while waiving the deposit have discussed the issue in detail, that no commission / omission and/or abetment alleged by the Department nor any findings given on the role of the appellant. He also submits that in case of 2nd appeal, no bill of entry filed by the importer. He also submits that no penalty imposed on Mr. Jamal. He relied on paragraphs 17 and 18 of the adjudication order.

3. On the other hand learned AR for Revenue supports the adjudication order and he strongly relied on the following decisions:-

(a) A. Jabrarullah Vs. Commissioner of customs, Chennai  2013 (287) ELT 306

(b) Vishnu Kumar Vs. Commissioner of Customs, New Delhi  2010 (260) ELT 356 (Del.)

(c) J. Mitra & Bros. Vs. Commissioner of Customs  2014 (301) ELT 52 (Del.)

He further submits that in 2nd appeal, the Commissioner (Appeals) has already reduced the penalty to Rs.75,000/-. He submits that the statement recoded on 29.5.2003 and 31.5.2003 clearly shows the involvement of the appellant.

4. After examining the records and hearing both sides, we find that the penalties were imposed under section 112(a) of the Customs Act. In order to penalize any person under this provision of law, it has to be found that, by way of some commission or omission or of abetment of such commission/ omission of another person, he rendered imported goods liable for confiscation under section 111 of the Act. On a scrutiny of the relevant show-cause notices, we find that goods which were allegedly smuggled into India were proposed to be confiscated under various provisions of section 111, but neither of the lower authorities has brought out anything to connect any of such goods with the appellant. The finding against the appellant has to be discerned from para 18 of the Orders-in-Original. However, no finding relevant to section 112(a) of the Customs Act is so discernible. As regards the Orders-in-Appeal, the state of affairs is worse inasmuch as the appellant has been held liable for penalty merely on the basis of his statement dated 29.5.2003. We have perused this statement also, but we have not found any material therein which would show that, by some commission / omission or abetment, he rendered any of the goods in question liable for confiscation under section111. It is also pertinent to note that his involvement in relation to the imports in question is through one Shri Jamal. Shri Jamals statement, however, does not contain any material to indicate that the appellant filed the relevant Bills of Entry or did anything in relation thereto.

5. The Honble Supreme Court in the case of State of Kerala Vs. M.M. Mathew & Anr. (supra), clearly held that strong suspicion and grave doubts could not take place of a legal proof. In view of the foregoing findings, we find that on facts and circumstances and taking into consideration the extent of his involvement and evidence as well as the role played, we find that the Department failed to bring out any contravention of commission / omission or abetment, it rendered the imported goods liable to confiscation under section 111, therefore, no penalty is imposable under section 112 and accordingly, the appeals are allowed.

(Pronounced in open court on _____________)

(P.K. CHOUDHARY) (R. PERIASAMI) Judicial Member Tehnical Member

Rex

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