Custom, Excise & Service Tax Tribunal
M/S D.S. Cargo Service vs C.C., New Delhi on 25 June, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Block No.2, R.K.Puram, New Delhi
COURT-III
Date of hearing/decision: 25.6.2009
Customs Appeals No.340-341 of 2006
Arising out of the order in original No.10/HKM/2006 dated 1.3.2006 passed by the Commissioner of Customs, New Delhi.
For Approval and Signature:
Honble Mr. M. Veeraiyan, Member (Technical)
Honble Mr. P.K. Das, Member (Judicial)
1
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
1. M/s D.S. Cargo Service . Appellants
2. Shri Jay Prakash
Vs.
C.C., New Delhi . Respondent
Appearance:
Shri Hemant Bajaj, Advocate for the appellants Shri Fateh Singh, Authorized Departmental Representative (DR) for the Revenue Coram: Honble Mr. M. Veeraiyan, Member (Technical) Honble Mr. P.K. Das, Member (Judicial) Oral Order No.____________________ Per P.K. Das:
These appeals are arising out of a common order and therefore, both are being taken up together for disposal.
2. M/s D.S. Cargo Service, a Customs House Agent and Shri Jay Prakash, an employee of CHA and G Card holder filed these appeals against the penalty of Rs.1 lakh and Rs.5,000/- respectively.
3. The relevant facts of the case , in brief , are that M/s Bee Ess Expo Inc. (exporter) filed shipping bills for export and claimed drawback. On investigation, it was found that there is a mis-declaration of the quantity, quality and value of sub-standard goods. The Commissioner denied the drawback benefit to the exporter and imposed penalties to the exporter and the appellant herein. He also confiscated the seized goods and imposed redemption fine thereon.
4. Learned Advocate on behalf of the appellants submits that the appellants are CHA and G Card holder. Shri Jay Prakash signed the shipping bills on the basis of authorisation of the exporter. He further submits that the representative of the exporters attended in response to summons and also filed reply to show cause notice. He submits that there is no material available with the appellants had any knowledge of any improper export of goods. He relied upon the decision of the Tribunal in the case of Vetri Impex vs. C.C., Tuticorin 2004 (172) ELT 347 (Tri-Chennai) and in the case of V. Esakia Pillai vs. C.C.., Chennai 2001 (138) ELT 802 (Tri-Chennai).
5. Learned DR on behalf of the revenue reiterates the finding of the Commissioner. He submits that the export declaration should be signed by the exporters. He further submits that in the present case, G card holder Shri Jay Prakash signed the shipping bills on instruction of CHA Shri Devender Singh without verifying the goods and therefore, the Commissioner has rightly imposed the penalties on them. He also submits that Shri Devender Singh in his statement stated that the exporters met with him at the Air Cargo unit in a routine manner. It is his submission that CHA had not taken proper step regarding genuineness of the exporter.
6. After hearing both sides and on perusal of the records, we find that the employee of the CHA signed the export shipping bills on the basis of authorisation of the exporter. It is noted that the representative of the exporter attended during the investigation and his statements were also recorded. It is seen that the exporter also attended the adjudication proceedings . The Commissioner observed that the CHA did not take usual precaution with regard to the value, quantity , quality of the export goods at the time of filing shipping bills.
7. We find that penalties were imposed under Section 114 of the Customs Act which provides that any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act, shall be liable for penalty. In the present case, there is no material available on record that the appellants did anything or committed anything in connivance or with the knowledge of the exporter. So, in the facts and circumstances of the case, in our view, the imposition of penalties under Section 114 of the Act are not warranted. We are not concerned with the case of the exporter. In any event, there is no material available that the CHA and his employee had any knowledge on the quality, quantity and value of the export goods.
7. In view of the above discussions, we set aside the penalties on the appellants. The impugned order is modified to that extent as stated above.
8. The appeals are allowed.
(M. Veeraiyan) Member (Technical) (P.K.Das) Member (Judicial) scd/ 3