Custom, Excise & Service Tax Tribunal
C.Ashok Kumar vs Commissioner Of Customs ... on 29 January, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.C/330/05
[Arising out of Order-in-Original No.3570/2005 dated 21.3.2005 passed by the Commissioner of Customs (Export-Sea Port), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
C.Ashok Kumar
Appellant
Versus
Commissioner of Customs (Export-Seaport) Chennai
Respondent
Appearance:
Shri B.Satish Kumar, Advocate Shri Krishnanandh, Advocate Shri C.Dhanasekaran, SDR For the Appellant For the Respondent CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Date of hearing : 29.1.2010 Date of decision : 29.1.2010 Final Order No.____________ The appellant herein, who is the authorized signatory of M/s.Sindhu Cargo Services Ltd., CHA, challenges the imposition of penalty of Rs.1 lakh upon him under the provisions of Section 114 (i) of the Customs Act, 1962 on the ground that he had not taken due care and precaution expected from a CHA and by his negligence, aided and abetted smuggling of red sanders logs in the guise of mica powder by M/s.S.K.Impex.
2. I have heard both sides. There is no evidence on record as to the knowledge on the part of the appellant of the substitution of red sanders logs for mica powder the Commissioner has accepted that the container containing consignment of mica powder was tampered and red sander wood logs was stuffed during transit. It is not the case of the department that the CHA was involved in the tampering. Significantly, the CHA has not been penalized. Negligence cannot result in abetment so as to warrant penal action, in the light of Tribunals decision in A.N.Bhat Vs Collector of Customs [1991 (55) ELT 580] and Neptunes Cargo Movers Pvt. Ltd. Vs Commissioner of Customs (Export), Chennai [2007(219) ELT 673].
3. Following the ratio of the above decisions, I set aside the penalty on the appellant and allow this appeal.
(Operative part of the order was pronounced in open court on 29.1.2010) (JYOTI BALASUNDARAM) VICE-PRESIDENT gs 2