K. KRISHNAKUMAR Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THIS appeal arises out of and is directed against the Order -in -Original, dated 14 -1 -1999 passed by the Commissioner of Customs, Cochin.

(2.) BY impugned Order the Commissioner was of the view that there was an attempt to import the second hand machinery in violation of the Import Policy 1997 -2002. Accordingly, he held that the goods were attempted to be imported in violation of policy and goods are liable for confiscation under Section 111(d) of the Customs Act, 1962. Apart from ordering for absolute confiscation of the impugned goods he imposed penalty of Rs. 1 lakh under Section 112(a) of the Customs Act, 1962. The appellant has come in appeal on questioning the penalty under Section 112(a) of the Act on the ground that neither he was importer nor in any way connected with the importation of the said goods.

(3.) SHRI Kumaraswamy, learned Consultant, appearing for the appellant submitted that no evidence was brought on record to show that there was any attempt on the part of the appellants either in importing the goods or placing the orders or making the payment for importation of the said goods. He said that when the appellant has gone abroad to meet the buyers, Mr. Albert Backer, he was taken to the factory of the supplier for introduction and induced him to book the goods. But straightaway he declined the offer due to financial constraints. After a lapse of sufficient time he was informed that the goods were sent to him. On knowing that goods were wrongly sent, he informed the suppliers not to ship the goods. The Department has made out a case against him on the sole ground that there was an attempt on the part of the appellant to find out prospective buyers/importers to clear the goods and accordingly implicated him as there was an attempt on his part to import the goods in imposing the penalty. Shri Kumuraswamy empathetically argued that the appellant was not in possession of any document relating to goods nor in any way connected with the importation of the impugned goods. Mere exploring the possibility of clearing the consignment at the instance of the suppliers/buyers that itself will not infringe any provisions of the Act and accordingly, there was no justification to impose penalty under Section 112 of the Act. In support of his contention he referred to the following decisions :