Customs, Excise and Gold Tribunal - Tamil Nadu
Syndicate Shipping Services (P) Ltd. vs Commissioner Of Customs (Imports) on 9 January, 2004
Equivalent citations: 2004(95)ECC45, 2004(171)ELT72(TRI-CHENNAI)
ORDER Jeet Ram Kait, Member (T)
1.By this appeal, the appellants challenge the imposition of penalty of Rs. 5,00,000 under the Order-in-Original No. 1253/2003 dated 27.11.2003 passed by the Commissioner of Customs (Imports) Chennai. The Commissioner besides confiscating 22,986 cartons of Benson & Hedges Cigarettes valued at Rs. 91,94,400 (C.I.F.) and 34,009 Nos of mini cassette players valued at Rs. 14,41,642 with option to redeem the same on payment of fine of Rs. 3,00,000 has also imposed penalties on various other persons. In the present appeal I am concerned with the imposition of penalty on the appellants herein, the Customs House Agent.
2. The brief facts of the case required for deciding this appeal is that the appellants are a CHA company. The charge against the appellants is that one Basheer of Sri Lanka had entered into a conspiracy alongwith the importer M/s World Wagon Agency, the proprietor of which is one P.V. Shyam Kumar, and the CHA, to smuggle cigarette into India and it was the CHA who introduced the importer to Shri Bahseer and that the CHA informed the fact of 100% examination of the goods to the importer after filing the Bill of entry who in turn alerted the said Basheer and by doing so, the CHA had abetted the smuggling of the goods into the country.
3. Appearing on behalf of the appellants Shri A.K. Jayaraj, learned Counsel submitted that there is no involvement of the CHA in the whole matter and he has not abetted the commission of the offence by the importer, if any. He has also invited our attention to the brief facts of the case narrated in the Order-in-Original where in it is mentioned that the Bill of Entry No. 502753 was filed on 23.6.2003 for clearance of 4200 dozens of Mini cassette players by the importer namely M/s World Wagon Agency. Those goods were supplied by M/s Ming Hua Trading Co. Ltd. China. On 24.6.2003 that is the next day the importer gave a letter to the AC group requesting for re-shipment of consignment as per the fax received from the supplier. The fax was received on 24.6.03 from the supplier stating that the Container No. HJCU-1162333/40 ft. (page No. 5 of the paper book) supplied to the importer vide invoice No. 1003215 dated 5.5.2003 contains 200 cartons of cigarettes made in China alongwith Cassette player. The consignment of 240 cartons of Cigarettes was to be Shipped to the Barcelona (Spain). This error made by their operation staff was requested to be excused and the container was requested to be re-shipped to them immediately. As regards their consignment of 4200 dozens (840) Cartons of Cassette Players, the supplier informed the importer that the same will be despatched to them on receipt of the booking of the original Bill of lading of the above container. On receipt of this letter from the supplier the importer wrote to the Deputy Commissioner of Customs, Chennai that they have surprisingly been informed and they have also received a fax from the supplier on 24.6.2003 stating that the container was wrongly shipped to them which was supposed to have been shipped to Spain. They also informed the Deputy Commissioner that since the consignment is not as per their order, they have requested the Customs Authorities to allow them to re-ship the same to the supplier. Simultaneously the importer wrote to the supplier that the Customs in Chennai wants certain documents from them for allowing re-shipment of the above-mentioned container vide their letter dated 25.6.03 and on the same day the importer wrote to the Deputy Commissioner (Imports) Group-VB Customs House Chennai that in continuation of their letter dated 25.6.03 they are enclosing the documents desired by the Customs. They also pointed out that the perusal of the above documents would reveal that the supplier (Exporter) had wrongly shipped the consignment to them, which was not ordered by them. It was in this background the importers have again requested the Customs Authorities to permit them to re-ship the container back to the supplier. He has further submitted that from para 24(d) of the impugned order, it would be seen that the CHA who had simply filed the documents for import of the seized goods on behalf of the importer was held to be liable for penalty under Section 112(a) of the Act. He also invited my attention to para 45 of the impugned order wherein the role of the CHA has been discussed by the Commissioner wherein it is mentioned that it was the CHA who introduced the importer to Shri Basheer and the meeting was held in the office of the CHA. This findings of the Commissioner also points out that it was the CHA who had informed the fact of 100% examination of the goods to the importer after filing the Bill of entry who in turn alerted Shri Basheer. The Commissioner further held that since 100% examination would bring out the actual contents of the goods, the claim of the wrong shipment was made immediately only to cover up the act of smuggling and escaping penal action. The learned Counsel submitted that there is no involvement of the CHA in smuggling of the cigarettes and the introduction of the importer by one Shri Basheer known to them does not conclusively prove that they had the knowledge about smuggling of the goods and they were abetting the commission of offence committed by the importer. He has further submitted that CHA and the supplier had already requested for re-shipment of the consignment accepting the mistake in handling at their end, immediately after the filing of the Bill of Entry even before the 100% examination of the consignment. The learned Counsel also relied upon the judgment rendered by the Hon'ble Apex Court in the case of Shri Ram and Anr. v. State of UP, AIR 1975 SC 175, wherein it has been held that in order to constitute abetment the abettor must be shown to have "intentionally" aided to the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of law. He has also invited our attention to the judgment rendered by the CEGAT West Zonal Bench in the case of Liladhar Pasoo Forwarders Pvt Ltd. v. CC Mumbai, 2000 (122) ELT 737 (Tri) wherein it has been held that for levying penalty for abetment, some degree of knowledge of contravention of law on the part of the abettor must be shown for imposition of penalty under Section 112 of the Customs Act. The learned Counsel also relied upon the judgment of this Bench in the case of A.N. Bhat v. CC, 1991 (55) ELT 580 wherein it was held that mis-declaration of exported goods by the exporter and where the partner of the export firm had been implicated, since the clearing agent had no knowledge, penalty under Section 114 of the Act was held to be not imposable. He also invited my attention to the judgment of the CEGAT, East Zonal Bench Calcutta, in the case of Shaikh & Pandit v. CC, 2001 (131) ELT 402 wherein it was held that penalty under Section 114 of the Act is not imposable on a CHA who in pursuance of requirement under the CHALR merely assisted the exporter in storing export goods rendering services required under the aforesaid Regulations and when there is no evidence on record or to suggest that the CHA had played any active role in attempting to export prohibited goods, no penalty can be imposed. He has also invited my attention to decision of the CEGAT, North Regional Bench in the case of P.S. Bedi & Co. v. CC, 2001 (133) ELT 86 wherein also it was held that no penalty under Section 112(a) can be imposed on the CHA when there is no finding that commission or omission of the CHA had rendered the goods confiscable. He has also invited my attention the Order No. 1094/2003 dated 23.12.2003 of this Tribunal in the case of U. Sivasubramanian wherein in similar facts and circumstances, penalty on the CHA was set aside. The learned Counsel in the circumstances prayed for allowing the appeal.
4. Shri A Jayachandran, appearing on behalf of the Revenue submitted that the various case laws cited by the learned Counsel are distinguishable from the facts of the present case. In this case involvement of the CHA in smuggling of the goods has been brought by evidence on record as could be seen from paras 43 to 45 of the impugned order. He therefore, prayed for rejection of the appeal.
5. I have considered the rival submissions and gone through the case records and perused the various case laws cited by the learned Counsel for the appellants. I observe that the charge against the appellants have been made out on the ground that it was the appellants (CHA) who introduced the importer to one Basheer in arranging smuggling of cigarettes to India. Introduction of a middle man and arranging meeting between importer and the middle man is the normal practice and that by itself cannot lead to the conclusion that the CHA was involved and was privy to the commission of offence committed by the importer, in the absence of a positive evidence to that effect. Further in the present case there is no allegation that the appellants had knowledge about the smuggling of the goods into the country by the importer. The evidence on record in my opinion, does not bring home the charge against the CHA that he had abetted the commission of offence by the importer. The Hon'ble Apex Court in the case of Shri Ram and Anr. v. State of UP (supra) has held that in order to constitute abetment, the abettor must be shown to have 'intentionally' aided to the commission of the crime. In the present case no evidence has been brought on record to show that the CHA had intentionally aided or abetted the commission of offence by the importer. The various other judgments including the one of this Bench vide Final Order No. 1094/2003 dated 23.12.2003 cited and relied upon by the learned Counsel apply to the facts of the present case.
6. In view of the above discussion and finding, I am of the considered opinion that the Revenue has failed to bring home the charge against the appellants. I therefore, set aside the penalty imposed on the appellants herein and allow the appeal.