Customs, Excise and Gold Tribunal - Tamil Nadu
Sanco Trans Limited vs Collector Of Customs on 20 October, 1995
Equivalent citations: 1996(83)ELT557(TRI-CHENNAI)
ORDER
S. Kalyanam, Vice President
1. Shri Kumaraswamy, the learned Consultant, submitted that the stay petition was decided ex parte, as the petitioners were absent on that day and prays that the same may be restored to file and the appeal taken up. For the reasons stated in the petition, the appeal is restored to file.
2. Since the subject matter of the appeal is in a narrow compass relating to only a penalty of Rs. 25,000 on the appellant who is a Customs House Clearing Agent, I take up the appeal itself for disposal with the consent of parties.
3. One Narendra Mehta, Proprietor of M/s. N.S. Mehta & Co, filed a shipping bill through the appellant, who is a clearing and forwarding agent, for export of certain consignments through Bangalore airport. The consignment comprised 22 cartons covered under airway bill having the stamp of the Central Silk Board, Bangalore, with a certificate endorsed that the goods in question covered by the invoices had been inspected by the Central Silk Board office in accordance with the regulation prescribed and had been packed and sealed in the presence of inspecting authority. Before the goods were actually put on board when the customs authorities opened up they found that eight cartons contained silk sarees and the rest contained grey cotton long cloth. It is in these circumstances that proceedings were instituted after due investigation by issue of a show cause notice against the exporters and other people and so far as the present appeal, is concerned, I am concerned only with the appellant who is a clearing and forwarding customs house agent, who has been levied a penalty of Rs. 25,000 on the ground that he was negligent in not having exercised proper vigil in examining the goods.
4. It was contended that the appellant had been a customs house clearing agent for over two decades without any blot on their reputation and with a. very clean record and in the present case the appellant were bonafide under the impression that the cartons contained the goods mentioned in the invoices and were actually misled by the certificate of endorsement issued by an inspection Agency of the Central Silk Board which is a statutory authority of the Central Government. Sh. Kumaraswamy also placed reliance on para 41 of the order and contended that even the learned Collector has only levelled a charge of negligence and negligence per se is different from culpable negligence and would not call for a punitive treatment by way of levy of penalty which would not slur on the clean reputation of the appellant.
5. Sh. Thyagaraj, the learned SDR, submitted that the clearing agent cannot absolve his responsibility and is entitled to exercise due care and caution and also diligence in scrutinising the documents vis-a-vis the goods in the discharge of the responsibilities. The duties and obligations of a customs agent are clearly spelt out in the Customs House Agents Licensing Regulations, 1984.
6. I have considered the submissions made before me. The short issue is with reference to sustainability of penalty levied on the appellant, who is a Customs House Clearing Agent. The goods in question in the various cartons were admittedly found sealed by the Central Silk Board, a quality control inspection agency and Central Silk Board is a statutory authority. The concerned airway bills had the stamp of the Central Silk Board and the invoices covering the goods in question, the following endorsement by the Central Silk Board had been made :-
"Certified that goods covered under this invoice have been inspected by this office in accordance with the regulation prescribed and have been packed and sealed in the presence of inspecting authority this day 3/84."
Therefore, it is obvious that the appellant should have bonafide been under the impression that the contents of the cartons were as per the prescribed description in the invoices which were also duly endorsed by the authorities of the Central Silk Board. Even the learned adjudicating authority dealing with the contention of the appellant has only found the appellant guilty of serious negligence and has observed in para 44 of the impugned order as under :-
As regards M/s. Sanco Trans Pvt. Ltd., they have pleaded that the goods were verified by their executives who were satisfied that the Central Silk Board has inspected the goods which were ultimately brought to the Airport for exportation directly by Shri Himanshu M. Gandhi and as the mistake was found only during complete examination of the goods on 3-4-1984, they were surprised to note the mis-declaration and they have no hand in the matter. This plea is not acceptable since as a clearing agent they should not have been merely satisfied with the documents and also should have applied their mind for what goods such documents are filed. It is clear that they have entrusted the whole activity to the exporters in stead of exercising vigilance and therefore they have shown total disregard to their obligation as a Custom House Agent. However, in the absence of any evidence of mala fide on their part in the context of the statements of the concerned persons involved and other circumstantial evidence and further in absence of any evidence to show illegal gain by helping the exporter in such nefarious activity, I am satisfied that it is a case of serious negligence on the part of the Customs House Agent M/s. Sanco Trans who should have ensured proper verification before accepting the goods and documents, the duty they have failed to perform. Accordingly, they are also held liable for penal action.
Having regard to the facts and circumstances of the case and also keeping in mind the role played by the appellant, who is a Customs House Clearing Agent, and also keeping in mind the difference between negligence per se and culpable negligence, I am of the view that while it is indisputable that the appellant, as rightly contended by the learned SDR, should have chosen to exercise greater vigilance in scrutinising the documents vis-a-vis the goods in question, the conduct of the appellant ipso facto in my view would not attract levy of penalty in the facts and circumstances of the case. I am of the view that for lack of exercise of proper inspection, supervision and diligence, a mere admonition would meet the ends of justice when the appellants' bona fides are not doubted. In this view of the matter, keeping in mind the appellants clean record of reputation for over 20 years without any breach or contravention of any rules, I set aside the penalty. This is being the first time the appellant is let off with an admonition. The appeal stands disposed of in the above terms.
(Pronounced and dictated in Open Court).