IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
Date of Hearing/Decision:02/07/2014
Customs Appeal No 122/ 2010-CUS (BR)
(Arising out of Order-in-Original No.05/APSS/CC/DRI/NCH/2009 dated 22.10.2009 of the Commissioner of Central Excise (Adj.), New Delhi).
Naveen Kumar .Appellant
Vs.
CC, New Delhi ..Respondent
Appearance:
Rep. by Shri P. Dahiya, Advocate for the appellant.
Rep. by Shri V.P. Batra, AR for the respondent.
CORAM : Hon ble Shri D.N. Panda, Judicial Member
Hon ble Shri Rakesh Kumar, Technical Member
Final Order no.52743/2014 dated:4.07.2014
Per D.N. Panda:
Ld. Counsel says that this appellant was used as an instrument by Sri Vineet Gupta to effectuate fraud against Customs. Although, the appellant was born on 12.09.88, his date of birth was taken as 18.11.1986 for opening bank account by Sri Gupta. The signature appended to the application for opening bank account was forged in several documents by Sri Gupta to commit fraud. Appellant did not import or export any goods. Both DRI and the Adjudicating Authority although appreciated such vital fact and evidence, still then, the appellant faced penalty of Rs.50,000/-.
2. Revenue supports the adjudication against the appellant.
3. Heard both sides and also perused para 58 and 8.2 of the impugned order.
4. Para-58 of the impugned order prima facie convinces that this appellant has no mens rea to be involved in the fraud noticed in the adjudication by the adjudication order dated 22.10.2009. Ld. Adjudicating Authority upon examination of the evidence recorded that the actual date of birth of the appellant was 12.09.1988 whereas that was stated to be 18.11.1986 for opening bank account and obtaining PAN. Even the Voter ID does not exhibit actual date of birth as found by learned Adjudicating Authority.
5. Ld. Adjudicating Commissioner brought out that one Shri Vineet Gupta was master minded person who used this appellant as an instrument to open bank account and also forged his signature to commit fraud. Once such a finding is apparent from para 58 of the adjudication order, it is not possible to appreciate as to the active involvement of this appellant for levy of penalty under Section 112 of the Customs Act, 1962.Section 112 of the Act applies where the person imputed to charge is found to have special and exclusive knowledge of the offence committed. When such element is absent from para 58 of adjudication order and learned Adjudicating Commissioner did not find any direct involvement of this appellant in the fraud except his name being used as a means to commit fraud by others, levying penalty on this appellant is unwarranted.
6. In absence of malafide of the appellant as stated above, it is not possible to say that the appellant had predetermined mind to cause fraud against Revenue. Therefore penalty against this appellant cannot be confirmed. That is annulled and appeal of this appellant is allowed. Consequential relief, if any, shall be admissible in accordance with the law.
( Rakesh Kumar ) (D.N. Panda )
Technical Member Judicial Member
Ckp.
NEW DELHI.
Date of Hearing/Decision:02/07/2014
Customs Appeal No 122/ 2010-CUS (BR)
(Arising out of Order-in-Original No.05/APSS/CC/DRI/NCH/2009 dated 22.10.2009 of the Commissioner of Central Excise (Adj.), New Delhi).
Naveen Kumar .Appellant
Vs.
CC, New Delhi ..Respondent
Appearance:
Rep. by Shri P. Dahiya, Advocate for the appellant.
Rep. by Shri V.P. Batra, AR for the respondent.
CORAM : Hon ble Shri D.N. Panda, Judicial Member
Hon ble Shri Rakesh Kumar, Technical Member
Final Order no.52743/2014 dated:4.07.2014
Per D.N. Panda:
Ld. Counsel says that this appellant was used as an instrument by Sri Vineet Gupta to effectuate fraud against Customs. Although, the appellant was born on 12.09.88, his date of birth was taken as 18.11.1986 for opening bank account by Sri Gupta. The signature appended to the application for opening bank account was forged in several documents by Sri Gupta to commit fraud. Appellant did not import or export any goods. Both DRI and the Adjudicating Authority although appreciated such vital fact and evidence, still then, the appellant faced penalty of Rs.50,000/-.
2. Revenue supports the adjudication against the appellant.
3. Heard both sides and also perused para 58 and 8.2 of the impugned order.
4. Para-58 of the impugned order prima facie convinces that this appellant has no mens rea to be involved in the fraud noticed in the adjudication by the adjudication order dated 22.10.2009. Ld. Adjudicating Authority upon examination of the evidence recorded that the actual date of birth of the appellant was 12.09.1988 whereas that was stated to be 18.11.1986 for opening bank account and obtaining PAN. Even the Voter ID does not exhibit actual date of birth as found by learned Adjudicating Authority.
5. Ld. Adjudicating Commissioner brought out that one Shri Vineet Gupta was master minded person who used this appellant as an instrument to open bank account and also forged his signature to commit fraud. Once such a finding is apparent from para 58 of the adjudication order, it is not possible to appreciate as to the active involvement of this appellant for levy of penalty under Section 112 of the Customs Act, 1962.Section 112 of the Act applies where the person imputed to charge is found to have special and exclusive knowledge of the offence committed. When such element is absent from para 58 of adjudication order and learned Adjudicating Commissioner did not find any direct involvement of this appellant in the fraud except his name being used as a means to commit fraud by others, levying penalty on this appellant is unwarranted.
6. In absence of malafide of the appellant as stated above, it is not possible to say that the appellant had predetermined mind to cause fraud against Revenue. Therefore penalty against this appellant cannot be confirmed. That is annulled and appeal of this appellant is allowed. Consequential relief, if any, shall be admissible in accordance with the law.
( Rakesh Kumar ) (D.N. Panda )
Technical Member Judicial Member
Ckp.
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