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TAXAP/335/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 335 of 2010
=========================================
COMMISSIONER
OF CUSTOMS - Appellant(s)
Versus
M/S
VAZ FORWARDING LTD. & 2 - Opponent(s)
=========================================
Appearance
:
MS AMEE
YAJNIK for
Appellant(s) : 1,
None for Opponent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
and
HONOURABLE
MR. JUSTICE H.B.ANTANI
Date
: 22/12/2010
ORAL
ORDER
(Per :
HONOURABLE MS. JUSTICE HARSHA DEVANI)
1. This
appeal is preferred against a consolidated order made by the Customs,
Excise and Service Tax Appellate Tribunal (the Tribunal) in an order
passed in three appeals being Appeal No.C/187-189/2009. Since a
common appeal has been filed in relation to all the three parties,
this appeal is treated as an appeal preferred against respondent No.1
– M/s. Vaz Forwarding Limited.
2. The
Commissioner of Customs, Kandla in this appeal under section 130 of
the Customs Act, 1962 has challenged order dated 27th
July, 2009 made by the Customs, Excise and Service Tax Appellate
Tribunal (the Tribunal) proposing the following two questions:-
“Whether
in the facts and circumstances of the present case, the Tribunal was
justified in holding that confiscation of goods under Section 111[m]
and imposition of penalty under Section 112[a] of the Customs Act,
1962 upon the respondent CHAs was neither justified nor warranted
despite there being undisputed in clearing the goods against
bogus/fictitious Advance Licenses and violation of the provisions of
the Customs Act, 1962?”
“Whether
mens rea is essential for imposition of penalty under section 112(a)
of the Customs Act, 1962 in the facts and circumstances where goods
are undisputedly rendered liable for confiscation under the
provisions of section 111 of the Customs Act, 1962 and whether in
the facts and circumstances of the present case, the Tribunal was
justified in allowing the party’s appeal?”
3. The
facts of the case stated briefly are that vide order dated 27th
February, 2009, the Commissioner of Customs, Kandla imposed penalty
of Rs.2 lakhs on the respondent, a Customs House Agent under section
112(a) of the Act. Being aggrieved, the respondent preferred appeal
before the Tribunal who set aside the penalty.
4. Ms.
Amee Yajnik, learned Senior Standing Counsel appearing on behalf of
the appellant has assailed the impugned order by placing reliance
upon the reasoning adopted by the adjudicating authority.
5. As
can be seen from the impugned order of the Tribunal, the Tribunal
after appreciating the evidence on record has recorded the following
findings:-
“4. As
is seen from the above, there is no direct evidence on record to show
that the said appellants were aware of the fact of the advance
licences being bogus and forged. There may be some contravention as
regards following procedure envisaged in the Customs House Licensing
Rules, but there is virtually no evidence to show any knowledge on
the part of the appellant about the forged advance licences. Even the
officers cleared the goods against said licences and it is only
subsequently on investigation that these licences were found to be
forged and bogus. Under these circumstances, I find no justifiable
reason to impose the penalties imposed upon the appellants. The same
are, accordingly, set aside and appeals allowed with consequential
relief to them.”
6. Thus,
it is apparent that the Tribunal after appreciating the evidence on
record has found that there was no direct evidence on record to
indicate that the respondent was aware of the fact that the advance
licences were bogus and forged. The Tribunal has also found as a
matter of fact that though there was some contravention on the part
of the assessee in following the procedure envisaged under the
Customs House Licensing Rules, there was no evidence on record to
show any knowledge on the part of the respondent that the advance
licences in question were forged. It is in the light of the aforesaid
findings recorded by the Tribunal that the Tribunal has held that
there was no justifiable reason to impose the penalties on the
respondent.
7. On
the findings of fact recorded by the Tribunal, it is not possible to
state that the conclusion arrived at by the Tribunal is in any manner
unreasonable so as to warrant interference. The impugned order being
based upon findings of fact, therefore, does not give rise to any
question of law much less, a substantial question of law.
8. The
appeal is, accordingly, dismissed.
(
Harsha Devani, J. )
(
H.B. Antani, J. )
hki
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