Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Tuticorin vs M/S. Moriks Shipping And Trading Pvt. ... on 11 February, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/SO/276/2007 & C/341/2006
(Arising out of Order-in-Appeal No. 14/2006 dated 23.6.2006 passed by the Commissioner of Customs (Appeals), Tiruchirappalli)
For approval and signature:
Honble Mr. P. G. Chacko, Member (Judicial)
1. Whether Press Reporters may be allowed to see 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 the Member wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Commissioner of Customs, Tuticorin Appellant
Vs.
M/s. Moriks Shipping and Trading Pvt. Ltd. Respondents
Appearance Shri M.K.A.K. Mohideen, JDR for the Appellant Smt. Dhanya, Advocate, for the Respondents CORAM Honble Mr. P. G. Chacko, Member (J) Date of Hearing: 11.02.2008 Date of Decision: 11.02.2008 Final Order No. ____________ After examining the records and hearing both sides, I am of the view that the appeal of the Revenue itself can be finally disposed of at this stage. Accordingly, I take up the appeal.
2. The respondents are a Customs House Agent [CHA], who handled an export consignment belonging to M/s. Max International. The goods were declared by the exporter in the relevant Shipping Bills as organic dye intermediate G-salt and the Shipping Bills were filed with a claim for drawback on the declared value of over Rs.64.00 lakhs. Detail examination of the goods by the officers of Customs followed by chemical examination of the goods in the departmental laboratory indicated that the goods presented for export was indeed common salt. On the basis of this finding, a case was framed against the exporter, CHA and others. The original authority confiscated the goods under Section 113(h)(ii) of the Customs Act on the ground of misdeclaration of the description and value of the goods, but gave option to the exporter to redeem the same on payment of a fine of Rs.20,000/- under Section 125 of the Customs Act. It also imposed penalties on the noticees including the CHA. M/s. Max International, who carried a penalty of Rs.5.00 lakhs, did not apparently succeed before the Commissioner (Appeals) and therefore their second appeal is pending before this Tribunal. The CHA, however, succeeded before the first appellate authority, which set aside the penalty imposed on them by the lower authority. Hence the present appeal of the Revenue before me.
3. After considering the submissions of learned JDR for the appellant and learned counsel for the respondents [CHA], I note that the appellant has stressed the obligation of the CHA under Regulation 13(d) of the Customs House Agents Licensing Regulations, 2004 [CHALR] and has endeavoured to establish that the respondents, by failing to ensure the correctness of the exporters declarations in the Shipping Bill and other export documents, abetted the offence of misdeclaration of description and value of the goods by the exporter. Learned DR has reiterated this case of the Revenue. On the other hand, learned counsel for the CHA submits that there is no evidence of the CHA having in any manner abetted the exporters alleged misdeclaration of description and value of the goods and therefore there can be no penalty on them under Section 114 of the Customs Act. It is submitted that the job of the CHA was limited to the proper filing of the export documents received from the exporter. He is not required to go into the authenticity of the declarations made by the exporter. According to learned counsel, the respondents discharged their role properly in accordance with CHALR, 2004. It is contended that no motive could be attributed to them in relation to the exporters declarations given in the export documents and therefore Section 114 of the Customs Act could not be invoked against them. In this connection reliance is placed on the Tribunals decision in the following cases:-
(i) Akanksha Enterprises Vs. Commissioner of Customs, Mumbai I - [2006 (203) ELT 125 (Tri. Del.)]
(ii) Vetri Impex Vs. Commissioner of Customs, Tuticorin [2004 (172) ELT 347 (Tri. Chennai)]
4. I find that, on the facts of the present case, the case law cited by learned counsel is squarely applicable. For a penalty under Section 114 of the Customs Act, on the ground of abetment of exporters offence of misdeclaration of description and value of export goods, the CHA should be shown to have actually abetted the said offence thereby rendering the goods liable for confiscation. In the present case, even according to the appellant, the CHAs failure was in the matter of ensuring the correctness of the declarations made in the export documents. The appellant refers to CHAs obligation under Regulation 13(d) of CHALR, 2004 and states that he has a duty to advice his client to comply with the provisions of the Act or, in the event of non-compliance, to bring the matter to the notice of the Customs authorities. There is no denial of these obligations of a CHA. The exporter filed Shipping Bills for export of what was declared as organic dye intermediate G-salt with a claim for drawback on the declared value of over Rs.64.00 lakhs. The exporter authorized the CHA to file such documents with such declarations, and the CHA did accordingly. Whether the goods presented for export was G-salt or common salt was a fact known to the exporter but not to the CHA. It is a question to be addressed by the Customs authorities through examination of the goods. The same is the position, when it comes to the value of the goods. As rightly held in the case of Akanksha Enterprises (supra) a CHA is not required to go into the authenticity of the declarations made in the export documents. His job is confined to submission of the documents given by the exporter as also to identify the exporter to the Customs authorities. The appellant has no case that the respondents did not discharge these obligations. If they say that the CHA violated Regulation 13(d), let them proceed against the CHA under the CHALR. In the absence of evidence of the CHA having abetted misdeclaration of description or value of the goods, it cannot be held that they are liable to be penalized under Section 114(iii) of the Customs Act. The case law cited by learned counsel is to this effect.
5. Learned JDR referred to a Circular of the Board as also to a judgment of the apex court. Both these relate to the conduct of exporters. Neither of these pertains to the conduct of a CHA.
6. The impugned order is sustained and this appeal is dismissed. The Revenues application for stay of operation of the said order also gets dismissed.
(Dictated and pronounced in open court)
(P.G. CHACKO) Member (J)
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