CESTAT | Employee not liable for the actions of the senior while following instructions; Tribunal allows appeal and sets aside penalty under S. 112 (a) of Customs Act

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): A Division Bench of Anil Choudhary (Judicial Member) and C.L. Mahar (Technical Member), allowed an appeal filed by the appellant who was an employee, “H‟ Cardholder working with Customs House Agent — Commercial Clearing Agencies Pvt. Limited, at the relevant time. In the impugned order against the importer, it was held that they have mis-declared in the Bill of Entry and prohibited goods were ordered to be confiscated absolutely and other goods allowed to be redeemed on payment of fine, along with demand of custom duty and penalty.

On specific information that Brij Enterprises were indulging into the smuggling of goods by misdeclaration of description, nature and quantity of the goods. The customs officer detained one container which was imported from Singapore. As per the bill of entry filed through CHA – M/s Commercial Clearing Agencies Pvt. Limited, the declared goods were 144 air conditioners as per the bill of entry. However, on inspection, it was found to contain 65 air conditioners, 940 cylinders of “Refrigerant 22” gas (prohibited goods) and 315 Sony Play Stations. Counsel for the appellant, Ms Reena Rawat urged that no case of collusion or aiding and abetting is made out against the appellant – employee of the CHA company. At best, the appellant has been working as an employee and no case is made out against him, for making any personal gain over and above his salary. Further, the non-joining of the investigation by the Director of the CHA company speaks that the CHA company is responsible and not this appellant.

The Tribunal while allowing the appeal set aside the penalty imposed under Section 112 (a) of the Customs Act and stated that no case of aiding and abetting is made out against this appellant. Appellant as an employee of the CHA company was working as per the instructions given to him by his senior. There is no case made out of any abnormal gain by the appellant to indicate any collusion or abetment on his part with the importer of the consignment under dispute Shri Goyal and/or Shri Brijesh Mishra. [Rajesh Gaba v. Commr. of Customs, Custom Appeal No. 50468 of 2019, decided on 10-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

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