The Ahmedabad Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has quashed the order imposing penalty on the customs superintendent for allegedly demanding illegal gratification for goods clearance.
The bench of Ramesh Nair (Judicial Member) and Raju (Technical Member) has observed that the adjudicating Authority has not examined the persons who have given the statements which have been relied upon to implicate the appellant/customs officer. Also, no opportunity of cross-examination was given to the customs officer to question the basis on which the co-accused has implicated the appellant in this case. When the procedure set out in Section 138B is not followed, the statement of the co-accused has no evidentiary value.
The bench added that for Customs Act, irrespective of the fact whether the person is an officer of Customs or any other person, penalty for an offence of abetting can be imposed only on establishing a positive act on abetment of another person’s act or omission which will make the connected goods liable for confiscation. There is no sustainable ground to impose penalties under Section 112 on the customs officer.
The appellant used to work as Superintendent of Customs, SIIB, Mundra. DRI had received some information in regard to the imports made by M/s. Crescent Traders. Following the same, they detained imported goods after the said importer had filed a Bill of Entry and out of charge was given by the Customs Authorities. It was found that the goods were mobile accessories viz. mobile screen guard, USB cable, mini speakers, selfie stick for mobile, USB lock connector, etc.
The declared value in the Bill of Entry was Rs.14,87,806/-. The case against the main importer M/s. Crescent Traders is that the goods were highly undervalued.
The correct value would be around Rs.4.31 Crores as per E-Commerce Website, the cell phone accessories were counterfeit of original, the provisions of BIS were not complied and in regard to some goods relevant provisions of WPC (Wireless Planning and Coordination) Wing of the Ministry of Communications were not followed.
During the course of investigation, various punchnama were drawn and statements of various persons were recorded. After the detailed investigation, show cause notice was issued to various other persons including the Appellant/Customs Officer.
In adjudication, Principal Commissioner of Customs, Mundra has imposed a penalty of Rs.2,00,000 on the appellant under section 112(a)(i) & 112(a)(ii) the Customs Act, 1962 and he has also imposed another penalty of Rs. 50,000 under section 114AA of the Customs Act, 1962.
The customs officer contended that it is wrongly concluded in the order that the Appellant, Superintendent, working then at SIIB, Customs House, Mundra had deliberately misguided his superior officer to aid in clearance of subject consignment illegally and that he handed over customs file to a private person and used a fabricated panchnama in clearance of goods. The customs officer contended that basis of conclusion is that, the Adjudicating authority makes an assumption that there are some audio clips/ voice message independently retrieved from the Mobile phone of Shri Nasser Khan which showed that Shri Nasser Khan and Shri Mayur Mehta sent a big amount of illegal gratification to the customs officers at Mundra. However, absolutely no evidence worth the name was found that any illegal gratification was paid to the Appellant.
The tribunal held that section 114AA (supra) is attracted when 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. Needless to mention that when the appellant had no personal interest in the transaction or that the charge of demand of illegal gratification fails, then automatically it is concluded that there was no knowledge or intention on part of the appellant. Therefore, no penalty could be imposed on the appellant under Section 114AA.
Case Details
Case Title: Amit Das Versus Commissioner Of Customs – Mundra Customs
Case No.: Customs Appeal No. 10686 Of 2024-DB
Date: 26.11.2024
Counsel For Appellant: Devashish K Trivedi
Counsel For Respondent: Sanjay Kumar
