Abetment Charge Can’t Survive Without Identifying Actual Importer: CESTAT

The Chennai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has ruled that a charge of abetment under Section 112(a) of the Customs Act, 1962 cannot be sustained when the actual importer responsible for the alleged improper importation remains unidentified. The bench of P. Dinesha (Judicial Member) has observed that abetment necessarily presupposes the existence of two persons—a principal offender and an abettor. Since the offence alleged in the present case related to improper importation, the actual importer would constitute the principal offender. In the absence of identification or prosecution of such importer, there could be no question of another person being held liable for abetment. The dispute arose out of a Directorate of Revenue Intelligence (DRI), Chennai Zonal Unit investigation based on intelligence that M/s Thivya Agencies had attempted to smuggle foreign-origin cigarettes by declaring the consignment as “Malaysian Core Veneer” in a 40-foot container imported through Chennai Port. Upon examination, the authorities initiated proceedings and issued a show cause notice proposing confiscation of the goods and penalties against the appellants. During the investigation, a specific telephone number belonging to one Sharvesh Bulchandani was found in the shipping documents. However, the Tribunal noted that despite this crucial lead, the Revenue neither examined the call records nor conducted any meaningful investigation into the role of the person whose number appeared in the documents. Instead, the authorities accepted his claim of innocence while proceeding against the appellants on the basis of uncorroborated allegations. The Tribunal observed that the investigation appeared to have been conducted merely as a formality. It remarked that while sharing an address in shipping transactions may not necessarily establish culpability, the presence of a specific phone number warranted further inquiry. Failure to verify call records before granting a clean chit to the concerned individual raised serious doubts about the fairness and completeness of the investigation. Another significant factor considered by the Tribunal was that neither of the appellants had been identified as the actual importer. It noted that the department had completely failed to establish who had actually imported the goods and had omitted any discussion regarding the real importer in both the show cause notice and the adjudication order. The Tribunal further found that the case against the appellants rested substantially on statements that had subsequently been retracted and which lacked independent corroboration. It held that cross-examination of crucial witnesses should have been afforded to ascertain the truth, especially when allegations had been made by persons who could themselves have had motives to implicate others. With respect to appellant C. Solomon Selvaraj, the Tribunal took note of his contention that he had earlier lodged a police complaint alleging misuse of his Importer Exporter Code (IEC) by B.A. Suresh Kumar. This circumstance, according to the Tribunal, strengthened the need for proper cross-examination and a more thorough investigation, neither of which had been undertaken by the department. The Tribunal observed that an alleged abettor cannot conspire with himself and that penal action against third parties cannot survive when the actual committer of the offence is unknown or charges against him are not established. The Bench also held that Section 114AA of the Customs Act was wrongly invoked. According to the Tribunal, the provision was introduced to deal with fraudulent exports that existed only on paper and where no physical exports had actually taken place. Consequently, the provision could not be applied in cases involving imports. Finding the investigation to be incomplete and the evidence insufficient, the Tribunal concluded that the penalties imposed on the appellants were unsustainable. Accordingly, it set aside the impugned order and allowed both appeals. Case Details Case Title: Shri B.A. Suresh Kumar Versus The Commissioner of Customs Citation: JURISHOUR-1522-HC-2026(CHE) Case No.: Customs Appeal No. 40678 of 2018 Date: 02.06.2026 Counsel For Appellant: Shri Ramkumar C. Counsel For Respondent: Maithili. L., Advocate Click Here To Read Order Read More: Customs Brokers Can’t Be Penalised When Importer Cleared of Mala Fide Intent: CESTAT

Abetment Charge Can’t Survive Without Identifying Actual Importer: CESTAT

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