NIRMALA RISHI Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THESE appeals are directed against a common order. Therefore, they are disposed of by this common order. The impugned order confiscated a consignment of cellular phones under Section 111(m) of the Customs Act, 1962 for under -declaring the value of the goods in the customs documents. Simultaneously, it imposed the following penalties under Section 112(a) of the Customs Act: -

(2.) ARGUING the appeals of the importing company and its Directors, learned Counsel, Shri Madho Rao submits that the valuation adopted by the Customs Authorities is not being challenged as the value has been adopted based on the correct amount paid for the goods. He, therefore, limits his arguments to the penalties. He submits that while the penalties are excessive, the penalties imposed on Mrs. Nirmala Rishi in particular is too harsh and unwarranted as she is not involved in running of the company or in the import in question. She had been asked by the clearing agent, when the Managing Director of the importing company was abroad, to get the invoices authenticated from the bank. She attended to this work in an effort to ensure clearance of the goods, not knowing that the invoices did not represent correct value of the goods or that an offence punishable under the Customs Act, 1962 was being committed. He also submitted that Dr. Rishi, Managing Director of the importing company was not in India at the time of the filing of the wrong papers for the clearance of the goods. Ms. Anita Batla also, who happened to be in India in connection with a bereavement signed the papers without being fully aware of the contents.

(3.) ARGUING the appeal for the Clearing Agent, learned Counsel, Shri L.P. Asthana submits that the evidence on record does not in any way justify imposition of penalty on him. He had only filed the Bill of Entry in accordance with the invoice and other documents handed over to him by the importer. The learned Commissioner has drawn wrong inferences from the documents in question and has imposed penalty on him. The evidence relied upon against him is that the Airway Bill had mentioned the Letter of Credit opened by Bank of Tokyo and in spite of that he filed the invoices handed over to him. Further, an invoice for Singapore dollar 405 per piece of cellular phone was recovered from the importer's premises and the same was in an envelope of the Clearing Agent, leading to the presumption that this invoice had been prepared by the agent with the intention to file with the Customs. Shri Asthana submitted that these presumptions are entirely wrong. The Airway Bill did not indicate the value of the consignments and in the absence of that information, the agent had no reason to suspect that the invoice filed from the Singapore supplier was incorrect. The invoice for Singapore dollar 405 was recovered from the premises of the importer and no evidence has come on record to show that it had been prepared by the agent or it was intended to be used to under -invoice the goods and to evade Customs duty. In the circumstances, he submitted that the penalty on the Clearing Agent was entirely unjustified as he was only performing his duties as an agent in assisting the importer to clear the goods from the Customs.