Dept shall prove “Abetment of Offence” to attract Confiscation of Goods: CESTAT [Read Order]

The Chennai bench of the CESTAT has held that in order to attract the provisions relating to confiscation of goods under section 113 of the Customs Act, 1962, the department shall prove the abetment of offence in accordance with section 114 of the Act.

The Directorate of Revenue Intelligence, Chennai Zonal Unit gathered specific intelligence that attempts were made to smuggle red sanders from Chennai Port in consignment covered under Shipping Bill dated 2.5.2018 in the name of M/s. Universal Concrete Technology. The said bill was filed by the Customs Broker, the appellant M/s. Hera Shipping Solutions Pvt. Ltd. Later, the container was off loaded from vessel for verification and the officers found the same as red sanders. During the course of investigation, it was revealed that an unknown person introduced himself as Shri Rajesh to Shri Mahimai David and impersonated himself as Shri Sampath Kumar, Proprietor of M/s. Universal Concrete Technology, Coimbatore. Shri Mahimai David who was Sales Manager of M/s. New Idea Logistics received the documents including KYC and self-declaration form. M/s. New Idea Logistics did not obtain authorization directly from the exporter. The department, accordingly, passed an order under section 124 of the Act and imposed penalty.

The bench comprising of Ms. SulekhaBeevi C.S., Member (Judicial) and Shri P. Anjani Kumar, Member (Technical) found that Ms.Mahimai David, has stated that the appellants had no knowledge about the incident.

“In order to attract section 114 of the Act, the department has to establish some act or omission by which the appellant has abetted the offence. Section 107 of IPC defines ‘abetment’. As per the third limb of this definition, if a person ‘intentionally aids, by any act or illegal omission, the doing of that thing’, it would be abetment of an offence. Mens rea is a main ingredient as the third limb uses the word ‘intentionally’. Nothing is brought out in the nature of evidence to establish that the appellant had done or omitted to do any act intentionally. The alleged contraventions come within the CBLR, 2013 only,” the bench said.

Setting aside the order, the CESTAT bench observed that “when there is no evidence to establish any overt act or mens rea to facilitate the commission of offence, the finding of the Commissioner (Appeals) that the appellant has facilitated the attempt to smuggle red sanders is without any factual and legal basis and cannot sustain. From the observations made above, we find that the order passed by the Commissioner (Appeals) is without correctly appreciating the facts or the provisions of the law.”

To Read the full text of the Order CLICK HERE

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