Helping an individual obtain a fake identity/driving license for a bank account, while a criminal offense, does not automatically attract penalties under Section 114 or 114AA of the Customs Act unless a specific role in the customs contravention or filing of false documents is proven.

R. MURALIDHAR :

An investigation was taken up in respect of export of “neckties of silk” by M/s. Singh Trading Company. It was found that duty draw-back of Rs.3,57,33,582/- was claimed by them which was also granted to them. After investigation, a Show Cause Notice came to be issued to them as well as to many other Noticees including one Mr.Ajay Madan alias Jassi alias Ashutosh Birla, Director of M/s. Sam Merchandisers Pvt.Ltd. and also to the present Appellant Shri Anupam Mondal, proprietor of M/s. East India Impex. After due process, the Adjudicating authority rejected the value of the impugned goods, re-determined the value of the impugned goods, rejected the Drawback claimed on the goods exported, ordered recovery of the drawback claim. He also imposed penalties on various Noticees. In respect of the present Noticee, he has imposed penalty of Rs.25.00 Lakhs under section 114(iii) and penalty of Rs.25.00 Lakhs under section 114AA of the Customs Act, 1962. None of the other Noticees have preferred any appeal before the Commissioner(Appeals). Only the present Appellant has filed his Appeal before the Commissioner(Appeals), which came to be dismissed by him. Being aggrieved, the Appellant is before the Tribunal.

2. The Ld.Counsel appearing on behalf of the Appellant submits that the purported contravention of claim of Drawback happened in respect of 456 Shipping Bills. Only 16 live consignments in respect of M/s. Cosmos Impex were intercepted on 08.05.2010. It is submitted that the Appellant is physically involved in packing the neckties in the boxes and handing over to the CHA for onward exports as instructed by the exporter. They do not have access to know about the quality of the neck ties, the value thereof etc. The Show Cause Notice does not bring in any fact as to how the Appellant was responsible for the higher value claimed for the exported neckties by the exporter. The only issues raised in respect of the Appellant is that he had abetted Shri Ajay Madan alias Jassi alias Ashutosh Birla in creating fake identity for him by way of obtaining Driving Licence in a fake name which helped him to open a bank account. One point was also made about the appellant receiving money to the extent of Rs.3.50 lakhs from Jassi and handing over to Shri Debasish Mukherjee [Another notice with various counts of contraventions]. She submits that no specific contraventions in respect of the Customs Act / Rules have been brought in with proper corroborative evidence by the Revenue against the appellant.

3. Ld.Counsel takes me to Para 41 of the Order-in-Original, wherein the findings about the above issues have been given by the Adjudicating authority.

4. Ld.Counsel submits that the alleged contravention neither calls for penalty under Section 114 nor for any penalty under Section 114AA of the Customs Act, 1962. She relies on the case law of M/s. R.S. Arunachalam v. Commissioner of Customs (Tri.-Chennai) and Kailash Bahiru Jadhav v. Commissioner of Customs (Exports), (Tri-Mumbai). In these decisions it has been held that if there are any violations which have occurred, only the provisions of CBLR 2013 can be invoked against the concerned person.

5. The Ld.Counsel also relies on the case law of Jai Balaji Industries v. Commr. of Customs, Visakhapatnam [2018 (361) ELT 429 (AP)], for setting aside the penalty imposed und