Customs, Excise and Gold Tribunal - Tamil Nadu
S. Esakiaduperumal And V. Esakia Pillai vs Commissioner Of Trichy on 28 January, 1998
Equivalent citations: 1998(60)ECC104
ORDER
T.P. Nambiar, Member
1. These appeals are filed by the appellants against the order passed by the CCE(A). In terms of that order he held that imposition of penalty on the appellants is correct.
2. Shri A.K. Jayaraj, learned Counsel assisted by Shri M.S. Kumarasamy, learned Consultant fox the appellants contended that the whole allegation is that the appellants attempted to export the goods in question without a valid APEDA certificate. In this connection Shri A.K. Jayaraj. learned Counsel pointed out that at the time when the assessment is made the APEDA certificate should be produced and after looking into the APEDA certificate assessment will be over and the "Let export order" was given in this case. He therefore, pointed out that there was a valid certificate in question. With respect to the finding that the partner had admitted in his statement that APEDA certificate expired on 25.6.96, the learned Counsel stated that this statement given by him was retracted. He pointed out that this statement cannot be relied upon. It was his contention that there was enquiry report under the Customs House Agents Regulations and in the enquiry report it was mentioned that there was APEDA certificate produced before assessment. He therefore, pointed out that the whole issue therefore has to be looked into with reference to the APEDA Certificate retained with the department. He pointed out that in the appeal grounds before the CCE(A) the appellants had stated that all the required documents were not given to them and this ground was not dealt with by the CCE(A). He pointed out that in order to arrive at a correct finding, the APEDA certificate should be looked into and then only a finding should be given. He stated that the original statement given by the appellant having been retracted does not have any evidentiary value. Alternatively he pointed out that both the Customs House Agent (CHA) and the Manager cannot be penalised in view of the fact that once the CHA has been penalised, the question of penalty on the Manager does not arise.
3. Replying to the above said contentions the learned SDR Shri V. Thyagaraj pointed out that in the reply dated 4.8.96, the appellants have not made any grievance about the non receipt of the documents. He further pointed out that the appellant in the reply stated that the APEDA Certificate was returned by them to the exporters and the exporters told that the Certificate was misplaced by them. He, therefore, pointed out that the APEDA Certificate was given to the appellants and they gave it to the exporters. He, therefore, pointed out that the original APEDA Certificate will not be with the department in view of the statement made by the appellants in the reply furnished by them. He also pointed out that in the reply they have stated that they will produce the same at the time of shipment as per the customs procedure. He in this connection drew my attention to the statement given by the appellants wherein it is stated that APEDA certificate expired on 25.6.96. He, therefore, pointed out that when the certificate itself was misplaced by the exporters as per the statement of the appellant in the reply to the show cause notice, the charge against the appellants is proved. He further pointed out there is nothing in the record to show that the appellants had given the statement under threat or coercion. He pointed out in the reply to show cause notice no plea of threat or coercion was taken by the appellants. He, therefore, pointed out that the fresh pleas which are mentioned now are only after thought.
4. I have considered the submissions made by both the sides. I find that the appellant V. Esakia Pillai has given reply to the show cause notice wherein he stated as follows:
Sub: Customs--Offence--Export of yellow Maize to Sri Lanka--S.B. 670/07.06.96 and 671--M/s. Dhanalakshmi Traders, Tuticorin--Issue of Show Cause Notice--Reg.
Please refer to the Show Cause Notice C.No. VIII/10/189/96 Dated 05.08.96 issued to M/s. Dhanalakshmi Traders, Tuticorin on the above subject.
In this connection, we like to submit the following few lines for your kindly consideration.
We are acting as Custom House Agent for many Exporters/ Importers including NAFED, Spices Trading Corporation (A Govt. of India Undertaking) State Trading Corporation. Bhopal.
The exporters have not at all discussed with us regarding the expiry of Quota Certificate, as stated by the exporters. Hence, the allegation made in. the Show Cause Notice is not correct, since, the assessment was over. We have returned the same to the exporters, when we have asked for the certificate at the time of shipment, the exporters told that they have misplaced the same and they have not informed us about the misplacement earlier. If they had informed us earlier, we could have brought the matter before the Customs Authorities.
We have not done anything intentionally, as stated by the exporters and as alleged in the Show Cause Notice.
We admit, that we have not obtained the certificate and produced at the time of shipment as required under the Customs procedures.
We assure that such mistakes will not be repeated by us in future. We request that a lenient view may be taken and pass orders and oblige. We request the Personal Hearing to explain our stand.
A perusal of this goes to show that the appellant has not challenged about the veracity of the statement given before the customs officers. He has also not mentioned anything about the non supply of the documents. When the appellant has not put forward these pleas before the adjudicating authority as per their reply, they cannot be heard to say that they were prejudiced in this regard. The submission of the learned Counsel that during the personal hearing they made such request is only averment which is not borne out by any records in this case. Therefore, this fresh plea cannot be allowed to be taken in these proceedings. On the contrary the statement of the appellant given before the officers is a substantive piece of evidence that the certificate has been misplaced by the exporters. It is therefore, seen that the appellants have moved the cargo without a valid certificate as admitted by them before the officers which has evidentiary value. This statement recorded under Section 108 of the Customs Act, 1962 has evidentiary value and unless it was shown that the statement is extracted under threat or coercion, the same is admissible as evidence. The question of verification of the APEDA Certificate is not practical in view of the fact that as per the appellants own admission it was returned to the exporters who stated that the same was misplaced. These are circumstances which show that the statement given by the appellant initially is voluntary and true and the same can be accepted. The customs house agents regulations mentioned by the learned Counsel is not material in deciding the present case. What has to be taken into consideration is the show cause notice and the reply given by the appellants in the case. In . this view of the matter, I hold that imposition of penalty on the Customs House Agent is sustainable.
5. At this juncture the learned Counsel pointed out that the Exporter himself was originally penalised Rs one lakh but the appellant was peanlised Rs 2 lakhs which was finally reduced to Rs one lakh.
He, therefore, pointed out that when the exporter himself was originally penalised Rs one lakh penalty of Rs 1 lakh on the CHA is excessive. Therefore, imposition of penalty on the CHA is not proper. It was also submitted by the learned Counsel that separate penalty on the Manager Esakiadumperumal is not warranted in this case. But the learned SDR stated that in view of Section 147(3) of the Customs Act, 1962 any person who has acted on behalf of the exporter is the person who is liable to be penalised. Under this Section it is specifically stated that any person who is expressly or impliedly authoised by the owner of the goods in this respect such persons shall be liable for all the consequences. It is clear that as per this section Customs House Agent is the person who shall be liable for the consequences. Therefore, it is the CHA who will be liable. Therefore, separate penalty on the Manager of the firm is not called for and I set aside the penalty of Rs 25,000/- imposed on the manager of the CHA firm., viz Esakiadumperumal. In the facts and circumstances, penalty of Rs 1 lakh on the CHA cannot be said to be excessive and I confirm the same. Accordingly, the appeal of the Manager i.e. Appeal No C/281/97 is allowed and the appeal of the agent i.e. Appeal No. C/282/97 is dismissed. I make it clear that this order passed on the basis of the evidence available in this case has no bearing in any other proceedings which may be taken against the appellants.
Dictated and pronounced in the Open Court.