Delhi High Court
Prashun Jain vs Commissioner Of Customs (Import & ... on 17 April, 2018
$~21.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CUSAA No. 108/2018
Date of decision: 17th April, 2018
PRASHUN JAIN ..... Appellant
Through: Mr. Rupesh Kumar and Mr.
Pravesh Bahuguna, Advocates.
versus
COMMISSIONER OF CUSTOMS (IMPORT & GENERAL),
NEW DELHI .... Respondent
Through: Mr. Harpreet Singh, Sr. Standing
Counsel & Mr. Suresh Chaudhary,
Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
Prashun Jain-appellant in this appeal under Section 130 of the
Customs Act, 1962 (Act, for short) impugns the order dated 7th
August, 2017 passed by the Customs, Excise and Service Tax
Appellate Tribunal, Delhi (Tribunal, for short) in Customs Appeal No.
C/51369/2014.
2. The impugned order substantially sets aside observations and
findings made in the order-in-original dated 31st October, 2013 by
CUSAA No. 108/2018 Page 1 of 6
deleting penalty of Rs.67,17,015/- under Section 112 of the Act and
reduces the penalty imposed under Section 114AA of the Act from
Rs.67,17,015/- to Rs.5,00,000/-. The appellate order also sets aside
the direction that the appellant was liable to pay customs duty of
Rs.67,17,015/-.
3. While reducing the penalty under Section 114AA of the Act, the
Tribunal had held as under:-
"9. However, the available evidence
including the statement of the transporter and
presence of gate pass with the appellant, his
prior knowledge of contents, alongwith other
evidences gathered, shall indicate that the
appellant is not totally blemishless.
Considering that the appellant is a „F‟ card
holder, he is aware of the provisions of the
customs law. He had acted in a manner in the
present case that will attract penal provisions of
Section 114AA. The said section stipulates that
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 shall be liable to a
penalty not exceeding five times, the value of
goods. We note that the said provisions are
wide enough to cover the acts of the appellant
as brought out during the investigation.
Considering that the evidences of such
involvement in the past clearances are not
available to a sustainable level and involvement
in the present consignment had been established
based on available evidence, we find that a
penalty of Rs. 5 lakhs under Section 114AA
CUSAA No. 108/2018 Page 2 of 6
will meet the ends of justice. Other than this
penalty, we find that the appellant cannot be put
to any liability for duty or penalty, under
Section 28 and 112 of the Act."
4. The appellant largely relied upon the findings of the Tribunal in
the earlier portion of the order and has prayed for setting aside of
penalty of Rs.5,00,000/- under Section 114AA of the Act.
5. Facts of the case are rather startling and do exposit clear
involvement of the appellant.
6. Bill of Entry No. 168385 dated 16th November, 2010 in the
name of M/s Rajdhani Crafts, Jaipur was assessed and the goods
herald frame (spare parts of weaving machine) valued at Rs.5,66,862/-
attracting nil customs duty were assessed and cleared.
7. After clearance, while the goods were lying outside the
clearance gate, the appellant had appeared and had shown his F card to
take delivery of the consignment. As there was information regarding
mis-declaration and clandestine import, the consignment was kept
under surveillance and intercepted. The appellant, on being
questioned, had revealed and stated that Mr.Biplav Kumar, who was
working for M/s Rajender P. Kapoor had completed clearance
formalities and thereafter had left the gate pass with the appellant to be
handed over to the customs officers for taking the consignment. The
gate pass was seized and the appellant had put his signatures on the
CUSAA No. 108/2018 Page 3 of 6
same. The appellant, in his statement had accepted mis-declaration,
stating that the consignment contained Micro SD Cards.
8. On inspection, the consignment was found to contain Micro SD
Cards of 2 GB and RAM of 1 GB valued at Rs.67,29,000/-. It was
also learnt that M/s Rajdhani Crafts, Jaipur had not imported the said
consignment. These names and details were wrongly and fraudulently
used.
9. The appellant does not dispute and accepts that he wanted to
take delivery of the consignment and was present outside the clearance
gate with the gate pass. It is also not disputed that the consignment
was mis-declared and was not imported by M/s Rajdhani Crafts,
Jaipur. Contents and value of the consignment is not challenged.
10. On the question of involvement of the appellant in ground (IX)
to the present appeal, the appellant has accepted that he got involved
with the subject goods, which he claims was with a view to providing
helping hand to Mr.Biplav Kumar. The appellant also has accepted
that he had also made a request for transportation of the goods and that
he had prior knowledge and information about the mis-declaration of
the goods and the actual contents. For convenience, ground (ix) of the
present appeal is reproduced below:
"THAT the learned Tribunal ought to have
appreciated that the appellant had been falsely
implicated in the present case even though he
was neither concerned nor connected with the
subject goods. The appellant got involved with
CUSAA No. 108/2018 Page 4 of 6
the subject goods only by extending helping
hand to one of his known person Shri Biplav
Kumar who is employee of another CHA M/s
Rajinder P. Kapur who had, after clearing the
subject from upon fulfilling customs formalities,
handed over the copy of gate pass to the
appellant with a request to give it for
transpiration. Shri Biplav Kumar had informed
him about the contents of the goods. It was in
this context that the appellant was having the
gate pass and was having prior knowledge about
the contents of the consignment. The fact that
the appellant himself voluntary approached the
customs authorities upon interception of the
subject consignment which was accepted by the
learned Tribunal, clearly justifies the bonafides
of the appellant and, therefore, imposition of
penalty under Section 114AA of the Act is not
justified in the facts of the present case."
11. Section 114AA of the Act is as under:-
"SECTION 114AA. Penalty for use of false
and incorrect material. - 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, shall be liable to a penalty not
exceeding five times the value of goods."
CUSAA No. 108/2018 Page 5 of 6
Penalty under Section 114 of the Act could be imposed if a
person knowingly or intentionally uses or causes to be made, signed or
used any declaration/statement/ document, which was false and
incorrect in material particulars. The appellant had used the false and
incorrect gate pass and had caused to be used the said false
declaration, statement and document. We do not, therefore, accept the
contention of the appellant that Section 114AA of the Act cannot be
invoked. The findings of the Tribunal on the question of involvement
of the appellant are factual. We do not think that the said findings
require interference on the ground that they are perverse. No
substantial question of law arises for consideration. Appeal has no
merit and is dismissed.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
APRIL 17, 2018
b/VKR
