Full Judgment
2. For better appreciation of the reasons for imposition of penalty on the appellant, we reproduced para 73.1 and 73.2 of the impugned order.
As already discussed in detail in the preceding paras, the declarations made in the export documents contained false claims of the extent of export made. There is no denial of the facts by Shri Ashok Pokharkar that, forged Bills of Lading were used by him, to create an evidence of export, whereas no cargo was actually carted into the Docks. The signatures of various functionaries of customs deptt. Steamer Agent, SASMIRA Laboratory Scientists were forged on the various documents to create fictitious evidence of acceptance, of exports, which did not take place. The Licence holder, being fully aware of the fact that the declared export was not made and yet having signed these declarations (through his authorized representative) and obtained entitlements of ineligible inputs, has committed the violation of Section 111(o) of the Customs Act. The said violation accrues on the following counts. In case the bogus export is not recorded as the actual export against the licences in question, the licences would have the status of zero export licences and consequently the corresponding imports, would have been subjected to actual user and end use conditionalities.
Thereby persons whose acts of omission and commission rendered the goods for such confiscation would be liable for penalty under Section 112(a) of the Customs Act. The licence holder is held to be a importer as discussed previously and therefore he (the licencee) is liable to penalty under Section 112(a). For aiding and abetting the said licence holder in the said acts of omission and commission as pointed out above would render Shri Ashok Pokharkar for penalty under Section 112(a) of the Customs Act, so far as past import of Polyester Filament Yarn, Disperse Dyes, Silicon compound totally valued at Rs. 2,41,15,086/- is concerned.
On the same considerations, Shri Balchandra Jadhav, the employee of Shri Ashok Pokharkar, who was instrumental in forging the signatures of various persons has also abetted in the various acts of commission and omission of the licence holder and accordingly rendered himself liable for penalty under Section 112(a) of the Customs Act. I therefore, hold that Shri Balchandra Jadhav is liable for penalty under Section 112(a) of the Customs Act.
3. The appellant en appearing in person has admitted having forged the signatures of various signatories on the various export related documents. However, he has submitted that the said forgery was carried out by him under the directions of his employer Shri Ashok Pokharkar.
The appellant was drawing a meagre salary of Rs. 1,500/- per month from M/s. Amol Shipping Agency and had a retired father, mother and brother to support. Inasmuch as, no financial gain was derived by him from the said signatory and the motive behind the said forgery was never disclosed to him, imposition of high penalty of Rs. 10 lakhs upon him was not justified. The appellant also submitted that it was not only, he, who was carrying out the mis-declaration in export document but the services of other employees were also being used by Shri Ashok Pokharkar. However, no penalty has been imposed upon them and he has been singled out. It is the appellants contention that the purpose for putting such signatures was never disclosed to him and he has never dealt with the goods. As such, imposition of penalty under the provision of Section 112, when admittedly the appellant has neither handled or dealt with any export or import consignments, was not justified, he submits that the only Section under which penalty can be imposed is Section 117 of the Customs Act, which provides maximum penalty of Rs. 10,000/-. As such, he prays for setting aside penalty of Rs. 10 lakhs imposed upon him.
4. Shri R.K. Pardeshi Ld. JDR submits that in view of the admission of the appellant as regards the forged signatures, adjudicating authority has rightly imposed personal penalty of Rs. 10 lakhs upon him, which should be upheld.5. We have considered the submissions made by both the sides. It is seen from the impugned order that it was Shri Ashok Pokharkar, who was filing forged bill of lading as a evidence of export and was using such documents for the consequent duty free imports. No doubt that the appellant, who was employee of Shri Ashok Pokharkar, has been used by him, for forging signatures of various persons, however there is nothing on record to show that the appellant was financially benefited by such forgery or was being paid by his employer. However, having committed act of forgery of signatures on various exports and means the appellants has made himself liable to personal penalty under the provisions of Section 112(a) of the Act. The appellants contention that he has not physically dealt with the goods does not come to his rescue, inasmuch as, the Sub-section (a) of Section 112 of the Act, does not require physically handling of the goods to impose penalty upon any person, who in relation to any goods, does not or omits to do any act, which acts or omission would rendered such goods liable to confiscation under Section 111, or abates the doing or omission, of such act.
Admittedly, by forging signatures on the various exports documents, the appellant has not only abetted the wrong doing but has, in fact, himself did, acts, which rendered goods liable to confiscation. It is not the appellant's plea that he was not aware of such wrongdoing. As such, having knowingly committed the offence of putting the signatories of various authorities on the export documents, which the appellants knew were meant for mis-declaration, has rendered himself liable to personal penalty under the said provisions. However, taking into account the other all facts and circumstances of the case we reduce the personal penalty of Rs. 10 lakhs to Rs. 50,000/- (Rupees fifty thousand only). But for the above modification in the quantum of penalty. Appeal is otherwise rejected.