Naveen Kumar vs CC, New Delhi

Ld. Counsel says that this appellant was used as an instrument by Sri Vineet Gupta to effectuate fraud against Customs. Although, the appellant

was born on 12.09.88, his date of birth was taken as 18.11.1986 for opening bank account by Sri Gupta. The signature appended to the application for

opening bank account was forged in several documents by Sri Gupta to commit fraud. Appellant did not import or export any goods. Both DRI and the

Adjudicating Authority although appreciated such vital fact and evidence, still then, the appellant faced penalty of Rs.50,000/-.

Revenue supports the adjudication against the appellant.

Heard both sides and also perused para 58 and 8.2 of the impugned order.

Para-58 of the impugned order prima facie convinces that this appellant has no mens rea to be involved in the fraud noticed in the adjudication by

the adjudication order dated 22.10.2009. Ld. Adjudicating Authority upon examination of the evidence recorded that the actual date of birth of the

appellant was 12.09.1988 whereas that was stated to be 18.11.1986 for opening bank account and obtaining PAN. Even the Voter ID does not exhibit

actual date of birth as found by learned Adjudicating Authority.

Ld. Adjudicating Commissioner brought out that one Shri Vineet Gupta was master minded person who used this appellant as an instrument to open

bank account and also forged his signature to commit fraud. Once such a finding is apparent from para 58 of the adjudication order, it is not possible to

appreciate as to the active involvement of this appellant for levy of penalty under Section 112 of the Customs Act, 1962. Section 112 of the Act

applies where the person imputed to charge is found to have special and exclusive knowledge of the offence committed. When such element is absent

from para 58 of adjudication order and learned Adjudicating Commissioner did not find any direct involvement of this appellant in the fraud except his

name being used as a means to commit fraud by others, levying penalty on this appellant is unwarranted.

In absence of malafide of the appellant as stated above, it is not possible to say that the appellant had predetermined mind to cause fraud against

Revenue. Therefore penalty against this appellant cannot be confirmed. That is annulled and appeal of this appellant is allowed. Consequential relief, if

any, shall be admissible in accordance with the law.