Customs, Excise and Gold Tribunal - Tamil Nadu
Syndicate Shipping Services Pvt. Ltd. vs Commissioner Of Customs on 4 March, 2003
JUDGMENT Archana Wadhwa, Member (J)
1. The appellant is aggrieved with the imposition of personal penalty of Rs. 10,000 imposed upon him under the provision of Section 117 of the Customs Act, 1962. The said personal penalty has been imposed upon the appellant who is a Customs House Clearing Agent on the ground that he has signed the shipping Bills under which attempted illegal export of Sandal wood logs/billets and Peacock feathers was taking place in the guise of Mica powder. Shri K. Rajaguru, Director of M/s. Syndicate Shipping Services (P) Ltd. in his statement dated 12.4.93 given before the officers during the course of investigation had deposed that he had signed and given one set of shipping bill document and export application related to the export of Mica Powder to Shri P. Gnanamani whom who knew for three years. He has neither any knowledge of the export of sandal wood by two shipping bills in question. The Commissioner, while adjudicating the case, has observed as under:
"37. Shri K. Rajaguru, Director, M/s. Syndicate Shipping Services P Ltd. admitted that he signed a set of Shipping Bill and export application for use by Shri Gnanamnni. Though, he contended that he was not aware of the attempted illegal export, I find that such facilitation to Shri Gnanamani enabled Him to carry out export of sandal wood. Out of the past eight consignments, three consignments were exported after filing shipping bills in the name of M/s. Syndicate Shipping Services duly signed by its Director. Shri Gnanamani forged the other Shipping Bills. Under the circumstances, M/s. Syndicate Shipping cannot plead innocence and their argument that Section 117 is not applicable to them, is not acceptable. It is clearly established that they allowed Shri Gnanamani, who was neither employee nor authorised employee nor authorised representative to utilise their company's name for illegal export of sandalwood/peacock feathers and thus abetted the contravention of the export control regulations. I hold that they are liable to penalty under Section 117 of the Customs Act, 1962."
2. Shri M.S. Kumaraswamy, Ld. Consultant appearing on behalf of the appellant, has strongly contended that the imposition of penalty upon the appellant is neither justified nor warranted inasmuch as there is nothing on record to show that the appellant has intentionally abetted the crime or had any knowledge of the fact that the said shipping document would be used for export of sandal wood instead of Mica powder. Ld. Consultant has drawn our attention to the statement given by Shri Gnanamani where he has admitted that the signature on the various documents were forged by him. In the said statement he has clearly admitted that the signature of Shri Rajaguru of M/s. Syndicate Shipping Services (P) Ltd. in the last two shipping bills have been forged by him and he has signed on his behalf. Drawing the attention to the allegations made in the show cause notice, Ld. Consultant submits that the charges against him were that by handing over duly singed shipping bills to Shri Gnanamani who was neither related in any way to his office nor was holding any license or identity card authorised by the Customs House it appears that such knowledge was there on the part of Customs House Agent and he allowed the misuse of the shipping bills to smuggle the contraband goods and therefore, it appears that the Customs House Agent is liable for penalty under Section 117 of the Customs Act, 1962. He submits that even the show cause notice has not attacked bona fide intention of the appellant and has not produced any evidence to show that the appellant was aware of the fact of the contraband goods being exported instead of the declared item. In these circumstances, imposition of penalty is not imposable.
3. Ld. Consultant also drew out attention to the findings given by the Hon'ble High Court on an appeal filed by the appellant against the order of the Chief Judicial Magistrate passed in prosecution proceedings. The appeal has been allowed by the Hon'ble High Court by observing that for the purpose of invoking section 239 of Criminal Procedure Code, the trial Court has to find out whether there is any sufficient ground for proceedings and even a strong suspicion would be sufficient to frame the charges. But in this case, there is no iota of evidence even to raise a mere suspicion, leave alone "strong suspicion", when there is no point in allowing the proceedings to go on. As such submits the Ld. Consultant that even the Hon'ble Hjgh Court has not found any evidence against the appellant for prosecution proceedings to go ahead.
4. We have heard Ld. DR Shri A. Jayachandran for the Revenue who justifies the imposition of personal penalty upon the appellant.
5. We have considered the submissions made by both sides. From the paragraph reproduced above from the order of the Commissioner of Customs, we find that he has imposed penalty upon the appellant by observing that the appellant has singed the shipping bills and the export application for use by Shri Gnanamani. Out of the total eight shipping bills, three shipping bills were alleged to be signed by the appellant and the five others were forged by Shri Gnanamani. If the appellant was. an active abettor in the crime he would have signed the balance five shipping bills also and there was no occasion for Shri Gnanamani to forge the signature of the appellant. This fact reflects upon the appellant's plea of innocence. Otherwise also there is no positive evidence on records to show that the appellant was an accomplice or abettor. It has been held in a number of cases that mere failure by the Custom House Agent to carry out his duties in accordance with law by itself is not sufficient ground to impose personal penalty under Section 117 of the Customs Act, 1962 unless there is evidence to show that the failure was on account of mala fide intention.
6. In view of the foregoing we do not find any justification in imposition of personal penalty of Rs. 10,000 upon the appellant. Accordingly, we set aside the same and allow the appeal with consequential relief, if any.