Cus - Producing some other person as Phiroze Bhai, whom appellant knew very well, before investigating authorities itself indicates that appellant had something to hide – by shielding Phiroze Bhai, appellant has made himself liable for penalty u/s 112: CESTAT
By TIOL News Service
MUMBAI, JAN 22, 2016: THE Commissioner of Customs (Import), Mumbai found the appellant to have contravened the provisions of Customs Act, 1962 by way of abetting, and hence liable for penalty under Section 112 (a) as also (b) of the Customs Act, 1962. The role attributed to the appellant by the adjudicating authority is that appellant being an employee of CHA filed bill of entry for clearance of radio cassette recorders, crockery, etc. imported in the name of one of M/s. Idol Enterprises and the said consignment was misdeclared in respect of value as well as quantity.
Before the CESTAT, the appellant emphasized that apart from filing of bill of entry and processing of the documents he had no role to play and had filed the documents as per the instructions and advice of client. Inasmuch as the provisions of Section 112 are not attracted as there was no abetment by him. It is further submitted that he had retracted the statement made and since there is no other corroborative evidence or for that matter the appellant hadnot been implicated by the co-noticees the findings recorded by the adjudicating authority that he indulged in unlawful activity by presenting some other person as Phirozebhai does not tantamount to act of abetment of mis-declaration.
The AR justified the conclusion by the adjudicating authority by submitting that the appellant is a part of a bigger conspiracy of importing various goods in the name of fictitious firms and had provided to the investigating authority incriminating documents pertaining to several other importers whose goods were delivered to Phirozebhai, the man behind the undervaluation and mis-declaration of the goods; that the appellant knew Phirozebhai very well and was delivering the consignments to Phirozebhai after the clearance and, therefore, by producing some other person before the authority as Phirozebhai, indicated that he had something to hide.
To this submission of the AR, the appellant in his rejoinder stated that merely because a person impersonated Phirozebhaithe same cannot render the goods liable for confiscation and hence penalty imposed is not correct.
The Bench observed that the submissions made by the appellant are not acceptable for more than one reason -
+ Firstly, though the appellant has retracted the statement given by him to the authorities, factually he has produced documents which indicated mis-declaration of the consignments which were cleared earlier. The said mis-declaration of the value as well as quantity is concerned with Mr. Phirozebhai, whom the appellant was unable to present before the authorities. The appellant was, in my view, aware of the mis-declaration of the value and the description of the goods of the consignments in question in this appeal as well as for the earlier consignments. Hence retraction of the statement would not improve the case of the appellant before this Tribunal.
+ Secondly, if the appellant had nothing to hide, his action of producing some other person as Phirozebhai before the investigating authorities itself indicate that he had something to hide and was not cooperating with the authorities to ascertain the mis-declaration of the value as well as description of goods. Non-presenting of Mr. Phirozebhai, whom the appellant knew very well, itself would indicate that he wanted to shield Mr. Phirozebhai from the authorities. By doing so, he committed an omission in the investigation carried out by the authorities.
Holding that the adjudicating authority was correct in coming to a conclusion that the appellant has to be penalized under the provisions of Section 112 of the Customs Act, 1962, the CESTAT upheld the order and rejected the appeal.
(See 2016-TIOL-241-CESTAT-MUM)
