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2020 ] HIM LOGISTICS PVT. LTD. v. COMMR. OF CUS., NEW DELHI ICD TKD EXPORT 119

lar, in the transaction of any business for the purposes of the Customs Act, shall
be liable to a penalty not exceeding 5 times the value of the goods.
25. Thus, no penalty under Section 114AA of the Act is imposable un-
der the facts of the present case. It is evident that the appellant themselves were
not aware of the fact, that the supplements are present in the import consign-
ment and the same was subsequently clarified by the supplier/exporter. It is fur-
ther urged that the penalty imposed on the appellant was mechanically, without
application of mind.
26. The Learned Counsel further urges that the order of appropriation
of bank guarantee furnished, for the purpose of provisional release, is bad as no
redemption fine was imposed. Thus order to recover redemption fine from the
bank guarantee is misplaced and fit to be set-aside.
27. Accordingly the Learned Counsel prays for allowing the appeal
with consequential benefits.
28. The Learned Counsel for the M/s. Him Logistics Private Limited,
appellant urges that the penalty of Rs. 12.5 lakhs imposed upon them is bad and
fit to be set aside. It has been alleged that, Him Logistics have actively and know-
ingly aided and abetted M/s. Balaji Oversees and its partner, and thus they were
hand in glove with them in the attempt to smuggle undeclared as well as prohib-
ited goods. M/s. Him Logistics paid the customs duty for the said consignment
on behalf of the importer - M/s. Balaji Oversees. They also handed over the cus-
toms KYC documents to M/s. KVS Cargo - Customs Broker, in the aforemen-
tioned Bill of Entry. That M/s. KVS cargo filed the Bill of Entry. The fact of hand-
ing over of KYC documents and other documents have been stated by the pro-
prietor of M/s. KVS Cargo, as the said documents were delivered to them by
Him Logistics. Thus, the appellants have been held liable to penalty under Sec-
tion 112 of the Act.
29. The Learned Counsel further urges that appellants, M/s. Him Lo-
gistics is neither the CHA nor the importer for the purpose of the present case.
Neither M/s. Him Logistics have been held to be a co-importer along with M/s.
Balaji Oversees. Further it is by way of procedural practice that the CHA - cus-
toms broker deposits the customs duties on behalf of the importer on receipt of
such amount from the importer, so as to facilitate clearance. Only for the act of
payment of Customs duty and handing over import documents to M/s. KVS
Cargo to file the Bill of Entry, no case of violation of any of the provisions of the
Customs Act is made, nor under the Customs Broker Regulations. Further in
none of the statements recorded from several persons anybody else alleged the
complicity of Him Logistics with M/s. Balaji Oversees. As the customs broker
license of Him Logistics was not under operation, they requested Mr. Jha of KVS
cargo to facilitate the clearance work, which is a normal practice not attracting
any adverse inference. That no inference of abetment is attracted by merely facili-
tating introduction between M/s. Balaji Oversees and M/s. KVS Cargo. It is fur-
ther urged that the basic condition precedents for imposition of penalty under
Section 112(b) of the Act are not available. The said Section provides - any person
who acquired possession of or is in any way concerned in carrying, removing,
depositing, harbouring, keeping, concealing, selling or purchasing or in any oth-
er manner dealing with any goods which he knows or has reason to believe are
liable to confiscation under Section 111 shall be liable for penalty. Admittedly in
the facts of the present case, appellant have not done any of the work or activity

EXCISE LAW TIMES  1st April 2020  281