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2020 ] COMMISSIONER OF CUSTOMS (IMPORT) v. TRINETRA IMPEX PVT. LTD. 337

respondent’s direct involvement with the importer i.e. the beneficiary was not es-
tablished.”
(emphasis supplied)
9. The incident that resulted in the initiation of parallel proceedings
against the respondent under Customs Broker Licensing Regulations and the
Customs Act, 1962 is the same. Thus, the facts noted in the order dated 11-12-
2017 assume significance and on perusal of the same, it clearly emerges that the
Court considered the obligation of the Customs authorities to examine the ap-
plicability of the conditions of the exemption notification and genuineness of the
documents submitted by the importer. The Court also drew adverse inference on
account of the fact that no departmental action had been taken against officers of
the department. Pertinently, it was noted that the Central Bureau of Investigtion
(CBI) had also investigated the issuance of bogus exemption certificates and had
not charge-sheeted the CHA. The charge-sheet was filed only against the propri-
etor of the importer and its authorized signatory and the proprietorship concern.
The CBI in its charge-sheet recorded that the CHA had retained photocopies of
the bills of exchange for its office records and had forwarded the original copies
of the same along with his bill to the importer for getting payments. Thus, CHA’s
direct involvement with the importer was not established. This fact prevailed
upon this Court in dismissing the appeal filed by the Customs Department, not
finding it to be fit to impose harsher penalty.
10. Now coming to the facts of the present case. The facts noted above
are not disputed before us, however, the Customs Department is aggrieved by
the deletion of the penalties imposed on the CHA. In respect of the show cause
notice dated 6-3-2013, penalty has been imposed under Section 112(b) as well as
114AA of the Act. A perusal of the said provisions clearly reveals that the penalty
under the said provisions can be imposed wherever there is an element of mens
rea or conscious knowledge, which is a sine qua non for imposition of the penalty.
This is evident from a plain reading of Sections 112 and 114AA of the Act, which
uses the expressions “does or omits to do” , “or abets the doing or omission of
such act”, “which he knows or has reason to believe are liable to confiscation un-
der Section 111”- in Section 112 and “knowingly or intentionally” in Section
114AA. The facts of the case in hand do not reveal any such element of mens rea
or conscious knowledge qua the importer. There is no active role attributed to the
respondent, which justifies the imposition of the penalty under Section 112(b)
and Section 114AA of the Act. Nothing has emerged even in the criminal investi-
gation.
11. In respect of the show cause notice dated 8-7-2011, the imposition of
the penalty has been made under Section 112(a) of the Act in respect of the goods
which have been held to be liable to be confiscated under Section 111 of the Act.
Here, the imposition of the penalty on the CHA is founded on the ground that he
has abetted the offence. Though, for imposition of penalty in respect of the cases
falling under Section 112(a) of the Act, mens rea may not be required to be proved
as condition precedent, however, when it comes to imposition of the penalty on
an abettor, it is necessary to show that the said essential element/ingredient is
present. [Ref. : Amritlakshmi Machine Works v. The Commissioner of Customs (Im-
port), [2016 SCC OnLine Bom 66 = 2016 (335) E.L.T. 225 (Bom.)].
12. In the present case, there is no element of mens rea or conscious
knowledge which can be attributed to the CHA. The investigation carried out by
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