The Kolkata bench of the Customs, Excise & Service Tax Appellate Tribunal ( CESTAT ) has held that no penalty is imposable on the assessee without corroborative evidence proving involvement in the invalid importation of the BMW M5 Car.
Shri Baby M.A., Advocate appeared for the Appellant (s) and Shri S. Debnath, Authorized Representative appeared for the Revenue
The appellant Shri Rakesh Aggarwal has filed an appeal against the imposition of a penalty of Rs.5.00 Lakhs on him vide Order-in original passed by the Additional Commissioner of Customs, Kolkata, which has been upheld by the impugned Order-in Appeal passed by the Commissioner ( Appeals ).
The appellant submitted that the issue involved in the present case is the importation of one BMW M5 Car in the name of Mrs Sadhna Aggarwal, wife of the appellant. The appellant submitted that Mrs. Sadhana Aggarwal has applied to the Settlement Commission and the duty, interest and penalty in respect of the above-mentioned car imported in the name of Mrs. Sadhana Aggarwal has been settled by the Settlement Commission.
The adjudicating authority passed the impugned order, wherein he imposed a penalty of Rs.Rs.5.00 Lakhs against the appellant on the ground that the appellant has abetted the commission of the offence and the same has been upheld by the Commissioner ( Appeals ).
The Counsel for the appellant submitted that the appellant has no role in the importation of the BMW M5 Car by his wife Mrs. Sadhana Aggarwal, except in making payment for the car on her behalf. The adjudicating authority has not given any categorical finding about the role played by the appellant in the offence warranting the imposition of penalty. Accordingly, he prayed for setting aside the penalty imposed on him.
It was submitted that all the negotiations about the importation of the BMW M5 car were done by the appellant. The appellant has admitted his involvement in the importation of the car in his statement dated 16.04.2009 wherein he has categorically stated that he has negotiated the deal with Mr. Haren Choksey. Accordingly, he justified the imposition of penalty against the appellant in the impugned order.
A single member bench of Shri K Anpazhakan, Member( Technical ) observed that the BMW M5 car was imported in the name of Mrs Sadhana Aggarwal. She has already filed an application before the Settlement Commission regarding the duty involved and settled the issue wherein she has been imposed a penalty of Rs.25,000/- by the Settlement Commission for the commission of the offence.
It was observed that the appellant has imported another Range Rover car in his name for which separate proceedings have been initiated and it is still pending. Along with the importation of his car, he has dealt with the importation of the BMW M5 car in the name of his wife. The offence related to the BMW M5 car has been settled by the Settlement Commission by settling the duty, and interest and imposing the penalty of Rs.25,000/- and a fine of Rs.1.00 Lakh instead of confiscation of the vehicle.
The Tribunal was of the view that Mrs Sadhana Aggarwal, importer of the BMW M5 car, has already been penalized for the offence related to the importation of the said BMW M5 car. Since there is no evidence brought on record against the appellant regarding his involvement in the commission of the offence other than payment towards the car by the appellant, the husband of Mrs Sadhana Aggarwal, the penalty imposed on the appellant was set aside.
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