Calcutta High Court
Evershine Customs (C&F) Pvt. Ltd vs The Commissioner Of Customs on 26 June, 2019
Author: I. P. Mukerji
Bench: I. P. Mukerji, Md. Nizamuddin
OD-10
ORDER SHEET
CUSTA 67 of 2018
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Customs)
ORIGINAL SIDE
EVERSHINE CUSTOMS (C&F) PVT. LTD.
Versus
THE COMMISSIONER OF CUSTOMS, PATNA
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
The Hon'ble JUSTICE MD. NIZAMUDDIN Date : 26th June, 2019.
Appearance:
Mr. Arijit Chakraborty, Adv.
Mr. Somnath Ganguly, Adv.
Ms. Manasi Mukherjee, Adv.
Ms. Sabnam Basu, Adv.
The Court: On 5th December, 2018 this appeal was admitted by a Division Bench of this court on the following substantial question of law:-
"Whether the imposition of penalty by the learned Tribunal in its impugned order was perverse and without any authority of law?"
After completion of formalities, the appeal was heard out today. The appellant was penalised under Section 114 of the Customs Act, 1962. However, the penalty of Rs.30 lakhs imposed by the adjudicating authority was reduced by the tribunal to Rs.15 lakhs. Still the appellant is aggrieved by the impugned order of the tribunal dated 9th May, 2018.
Penalty is imposable under Section 114 of the said Act if any person in relation to any goods does something which could render the goods liable to confiscation under Section 113 of the said Act or abets the doing of that act. Amongst other things, Section 113 states that if any goods are attempted to be exported contrary to any prohibition imposed by any law for the time being in force, the goods are liable to confiscation.
2
The appellant is a clearing house agent. He was in charge of processing a consignment of goods in Kolkata as the transit port in the exportation of the goods from Nepal to some other countries. The contents of the goods were mis-declared by the exporter according to the customs authority. The goods were discovered to be sandalwood. Confiscation proceedings were started under the said Act.
The principal allegation against the appellant was that as clearing house agent, he neither had any contact with the exporter nor had even verified his or their identity. The exporter was fictitious and not even traceable.
This allegation is denied by Mr. Chakraborty, learned advocate appearing for the appellant.
We are of the opinion that for imposing a penalty of even Rs.15 lakhs by reducing the same from Rs.30 lakhs, the exact complicity of the appellant with the illegal exportation should have been established and found by the tribunal and a finding recorded by it to that effect. The only finding is at paragraph 5 of the impugned order, which is insufficient.
In those circumstances, we observe that the impugned order of the tribunal may not be called perverse. For the ends of justice the matter is remanded to the tribunal by setting aside the said order for re-adjudication in accordance with law within two months from the date of communication of this order by hearing the parties and by a reasoned order. We order accordingly.
The appeal (CUSTA 67 of 2018) is disposed of.
(I. P. MUKERJI, J.) (MD. NIZAMUDDIN, J.) cs.