M/s. Tejpal Sharma vs C.C.New Delhi (Import And General)

This appeal is directed against the impugned order dated 15.07.2015 passed by the Commissioner of Customs (Appeals), New Delhi, upholding

penalty of Rs.5 lakhs imposed under Section 112(a)(i) read with Section 114AA of the Customs Act, 1962 upon the appellant.

Brief facts of the case are that acting upon a specific intelligence, an allot was issued against Ms. Avhyuvaya Impex, New Delhi in respect of the

bill of entry no.7986994 dated 19.09.2012 filed through Ms. Lohia Travel and Cargo, CHA. The said importer had declared the goods as cookware

sets. During the examination of the container, un-declared restricted goods i.e. fire crackers were found concealed along with the declared goods. As

the import of fireworks is restricted under Import Export Policy, proceedings were initiated and the matter was adjudicated in absolute confiscating the

fire crackers and imposing penalties on various persons, including the appellant herein.

The Ld. Advocate, appearing for the appellant filed the written submission and further submits that the appellant had only introduced the middle

man i.e. Arun Kumar Singh with the CHA for the purpose of clearance of the declared goods and that the appellant was not at all involved with the

importer as he has never met the importer and has not connived or colluded for importation of the restricted goods. The ld. Advocate has relied on the

decisions of the Tribunal in case of Syndicate Shipping Pvt. Ltd. Vs. CC, Chennai 2004 (171) ELT 72 (Tri. Chennai), Arif I. Patel Vs. Commissioner

of Custom (PREV), Mumbai 2014 (308) E.L.T. 698 (Tri.- Mumbai), U. Sivasubramanian Vs. Commissioner of Customs, Trichy reported in 2004

(165) E.L.T. 97 (Tribunal Chennai), and Pankaj Babu Saini Vs. Commissioner of Customs, Ghaziabad 2015 (316) E.L.T. 164 (Tri.- Del.) to state that

since the appellant has not dealt with the clearance of goods, it is not responsible for penalty as a facilitator.

On the other hand, the ld. DR appearing for the respondent reiterates the findings recorded in the impugned order.

Heard both sides and perused the records.

It is an admitted fact on record that the appellant introduced the middle man with the CHA and is no way connected to the importer of the goods

and also was not aware about the goods contained in the container. Thus, the person who has not dealt with the clearance of goods and also not

connived with CHA or importer in clearance of prohibited goods, penalty cannot be imposed on such person as a mediator/ facilitator. I find that the

case of the appellant is squarely covered by the decisions cited by the appellant wherein, it has been held that introduction of middle men and

arranging meetings between importer and the middle man is the normal business practice and that by itself cannot lead to conclusion that the appellant

was involved and was privy to the commission of offence committed by the importer in the absence of positive evidence to that effect. Since the

appellant is no way concerned with importation of subject goods and merely acted as a middle man / facilitator, I am of the view that penalty under

Section 112 read with Section 114 ibid cannot be imposed on the appellant.

Therefore, I do not find any merits in the impugned order and accordingly, the same is set aside and the appeal is allowed in favor of the appellant.

(Operative Portion pronounced in open court)