Custom, Excise & Service Tax Tribunal
Ryan Sea Air Agent vs Commissioner Of Customs (I), Mumbai on 19 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/255, 256/09 - Mum
(Arising out of Order-in-Appeal No. 278 and 279/B/Mumbai III/2008 dated 31.12.08 passed by the Commissioner of Customs (Appeals), Mumbai III.)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Ryan Sea Air Agent
Mehta & Mehta
:
Appellants
Versus
Commissioner of Customs (I), Mumbai
Respondents
Appearance Shri N.D. George, Advocate for Appellants Shri Manish Mohan, SDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 19.08.10 Date of Decision :.
ORDER NO.
Per : Ashok Jindal The appellants namely M/s. Ryan Sea Air Agent and M/s Mehta & Mehta (CHA) have filed these appeals against the imposition of penalties of Rs.25,000/- each by the lower authority.
2. The facts of the case are that the intelligence gathered by CIU of Air Cargo Complex, Mumbai in January 2003 led to detection of a number of imports made at ACC, Mumbai between September 2002 and January 2003 through manual bills of entry by grossly under invoicing and vaguely describing the consumer items such as mobile batteries, VCD players, car stereo, video casettes etc. by avoiding filing of these bills of entry under the EDI System on false / incorrect grounds and in complete contravention of Public Notice No.8/99 dated 04.02.99, Public Notice No. 26/99 dated 23.06.99, Public Notice No. 1/2002 dated 03.01.2002 and Public Notice No. 38/2002 dated 03.09.2002 and CHALR, 2004. It was found that both the appellants have filed the manual bills of entry on behalf of one of the importer M/s Sudhina International, Mumbai allegedly in flagrant violation of above Public Notices and the CHALR. Accordingly, a penalties of Rs.25,000/- each on both the appellants was imposed. Aggrieved by the imposition of penalties, the appellants are before me.
3. The learned Advocate for the appellants submitted that in this case the penalties have been imposed on the appellants for not declaring full description and for under-valuation of the goods. In fact, the appellants are the CHA and filed bills of entry on the basis of invoice and documents given to them by the importer. Moreover, the appellants were not aware of the under- valuation of the goods. Hence, no penalty can be imposed under the Customs Act. If at all any action is required that is to be under the CHALR 2004. He also submitted in the case of under valuation, penalty cannot be imposed as held by the Honble apex court in the case of Josts Engg. Co. Ltd. v. Collector in civil appeal No. 11404/95 dated 7.5.1996. Same view was taken by this Tribunal in the case of Kevin Infotech (P) Ltd. vs. Commissioner of Customs (Port) 2007 (216) ELT 435 (Tri. Kolkata). He further submitted that in the case of D.H. Ptkar & Co. vs. Commissioner of Customs (Import) 2008 (229) ELT 612 (Tri. Mum), this Tribunal has held that if any action is required that is to be under CHALR, 2004. No penalty is leviable under Section 112 and 117 of the Customs Act, 1962.
4. On the other hand, the learned DR submitted that in these cases the appellants have filed manual Bills of Entry on false/incorrect grounds and against the existing orders/notices. Moreover, they are duty bound to file the correct details of the goods imported and the correct value which they failed to do so and the penalties imposed on the appellants are sustainable. To support his contention he placed reliance on in the case of Commissioner of Customs (Export), Chennai vs. Bansal Industries 2007 (207) ELT 346 (Mad.) wherein the Honble High Court of Madras has held that element of mens rea not required for imposition of punishment under Customs Act, 1962.
5. Heard both sides.
6. On careful examination of the submissions made by both sides, I find that in this case the appellants have filed manual bills of entry as per the documents supplied by the importer. Those were examined and the goods were released. They are also charged for the under valuation of the goods which the importer has admitted. The CHA cannot be held liable for under valuation of the goods and moreover whatever documents have been supplied by the importer, the CHA filed Bill of Entry on the basis of those documents. Hence, the CHA cannot be charged for any action under the Customs Act, if at all any action is required to be taken against the CHA that is to be under CHALR, 2004. The case law relied upon by the learned DR is not relevant to this case. In fact the Honble High Court of Madras in Bansal Industries (supra) has held that the element of mens rea is not required for imposition of punishment against the importer. In fact the penalties were considered in that case is only on the importer not on the CHA. As rightly held by this Tribunal in the case of D.H. Patkar & Co. (supra) if at all any action is to be taken be taken under CHALR, 2004 and no penalty can be under Section 112 and 117 imposed on the appellants. Accordingly, penalties on the CHA are not leviable in this case. Moreover while imposing the penalty the adjudicating authority has failed to specify under which Act or under which provisions the penalties were imposed. Merely saying I also impose penalty of Rs.25,000/- each on CHAs M/s Ryan Sea Air Agents and M/s Mehta & Mehta is not correct in the eyes of the law.
7. Accordingly, the impugned order is set aside. Appeals are allowed with consequential relief.
(Pronounced in Court on ..) (Ashok Jindal) Member (Judicial) nsk 4 Appeal No. C/255, 256/09