Custom, Excise & Service Tax Tribunal
Kolkata(Port) vs Barua & Choudhury on 30 August, 2023
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.2
Customs Appeal No. 76378 of 2016
(Arising out of Order-in-Original Appeal No. KOL/CUS/CCMMISSIONER/PORT/52/2016
dated: 25.05.2016 passed by Commissioner of Customs, (Port), Custom House, 15/1 Stand
Road, Kolkata-700 001)
Commr. of Customs (Port), Kolkata
(Customs House, 15/1, Stand Road, Kolkata-700 001.)
...Appellant
VERSUS
M/s. Barua & Choudhury Ltd.
(170, G.T. Road, P.O.: Sheoraphuly, P.s.: Sreerampur,
Dist.: Hooghly, West Bengal, Pin.: 712 223.)
...Respondent
APPERANCE :
Present for the Appellant: None Present for the Respondent: Mr. Tariq Sulaieman, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON MEMBER (TECHNICAL) FINAL ORDER No...76715/2023 DATE OF HEARING :30.08.2023 DATE OF DECISION :30.08.2023 PER: RAJEEV TANDON The revenue has filed the impugned appeal against the Order in Original No. KOL/CUS/COMMISSIONER/PORT/52/2016 dated 25.05.2016 and is aggrieved with the fact of non-imposition of penalty by the
2 of 18 Customs Appeal No. 76378 of 2016 adjudicating authority on the appellant M/s. Barua and Choudhury under Section 114(i) of the Customs Act 19621.
2. None is present for the appellant. However, this being a revenue appeal and almost seven years old, the bench decided to proceed with the matter, even in the absence of the appellant.
3. The learned AR submits that the role of the appellant CHA's was brought out in the Order in Original in para 38(c) thereof, and that the appellant had lent his CHA registration and acted as a CHA only on paper to facilitate the attempted smuggling of Red Sanders, for a monetary consideration.
To ascertain the role played by CHA, it is therefore necessary to advert to para 38(c) of the impugned order in original. The same is therefore reproduced hereunder:
"Shri Himadri Narayan Choudhury, Partner of M/s. Barua and Choudhury working as CHA for M/s. Katras Ceramics and Refractories Pvt. Ltd. Dhanbad, cleared three such export consignments. Shri Choudhury claimed to have procured the export clearance work from one Shri Ashim Bose [mob. No. 9831074447], Prop. of B. Bose and Co., 3 Commercial Building, 23, N S Road, Kolkata-01. He also informed that Shri Ashim Bose procured this order from one Shri Babu Samanta [mob. No. 9748814466] of Janai, Banipur, Hooghly. Though he claimed that on receipt of KYC documents, company PAN card, Company profile, IEC of M/s. Katras
1. The Act.
3 of 18 Customs Appeal No. 76378 of 2016 Ceramics, he had initiated the clearance work, it is clear from the enquiry, that he never met with any authorized person of exporter M/s. Katras Ceramics and Refractories Pvt. Ltd. Dhanbad and the work was received through many a people in between acting as middle men. It appears that Shri Choudhury of M/s. Barua and Choudhury had lent his CHA registration and acted as a CHA on paper only to facilitate this attempted smuggling against monetary consideration. It also appears that he did not verify the signature of the authorized signatory of M/s. Katras Ceramics and Refractories Pvt. Ltd. and had no direct contacts whatsoever in getting the documents pertaining to the export consignments, rather he had acted to facilitate third parties using his CHA registration. He claimed to have neither arranged any transporter nor any container agent for the instant export shipment. All these arrangements were made by Shri Ashim Bose of B. Bose and Company and the cart in order was issued in favour of Barua and Choudhury by the shipping line. Though Shri Choudhury claimed that his firm was assigned for customs clearance work only and he used to get information over phone regarding entry of container into dock form M/s. B. Bose and Co. and the other documents were used to be handed over to Jetti Sirkar by driver of the vehicle carrying the export consignments, it appears that Shri Choudhury of M/s. Barua and Choudhury, failed to discharge his responsibilities as a registered CHA. It also appears that he tried to mislead the investigation by manipulating the list of clients attached to the agreement made with M/s. B. Bose and Company regarding export/import clearance, wherein name of M/s. Katras Ceramics and Refractories Pvt. Ltd. Dhanbad was included at sl. No. 6 apart from other five exporters. Having been confronted with the said list, on 17.04.2014, Shri Ashim Bose, of M/s. B. Bose and Company, stated under Section 108 of Customs Act 1962 that 4 of 18 Customs Appeal No. 76378 of 2016 the said agreement was made during September, 2013, while he undertook the first job of export clearance for M/s. Katras Ceramics and Refractories Pvt. Ltd. in the month of January 2014. Shri Ashim Bose confirmed that at the time of agreement, M/s. Katras Ceramics and Refractories Pvt. Ltd. was not included as his client in said agreement. It also appears that M/s. Barua and Choudhury has received payments from M/s. B. Bose and Co. and did not act as CHA of exporter M/s. Katras Ceramics and Refractories Pvt. Ltd., but acted as an agent of M/s. B. Bose and Co. Hence the KYC of the exporter as have been received by Barua and Choudhury through B. Bose and Co. has no credibility.
M/s. Barua and Choudhury, the Customs House Agent, for their material gain assisted the said racket in the attempt of illicit export of Red Sanders in the name of M/s. Katras Ceramics and Refractories Pvt. Ltd. and have thus failed to discharge their responsibilities properly/legally in dealing with the subject goods. Moreover, they had handled the jobs without verifying the KYC of the declared exporter which is tantamount to neglect their proper role as CHA. It thus appears that M/s. Barua and Choudhury have rendered themselves for liable for penal action under Section 114(i) of the Customs Act, 1962 as well as provision of CHALR'2004 READ WITH Customs Brokers Licensing Regulations, 2013 for their aforesaid omission."
4. While initiating action against the appellant CHA under the provisions of the act, for which the present appeal simultaneous proceedings under the 2 Customs Brokers Licensing Regulations 2013 , were also initiated against
2. The Regulations.
5 of 18 Customs Appeal No. 76378 of 2016 the appellant. The present proceedings being specific to the conduct of Customs House Agent, in order to ascertain any specific violation on the part of the appellant under the provisions of the Act can therefore, not be dealt in isolation to the action under CHALR 2004 and need to be understood so to have a comprehensive 3600 view of the role played by the Customs Brokers in the matter.
5. The proceedings under the Regulations were initiated pursuant to an offence report registered by the Directorate of Revenue Intelligence (DRI). A show cause notice was issued to the appellants that culminated into an order in original passed by the learned Commissioner of Customs (Airport and Administrative) vide order No. KOL/CUS/AIRPORT/ADMN/28/2015 dated 24th July 2015. Vide this order the learned Commissioner revoked the suspension of the Customs Broker's Licence (Suspended vide CHA order No. 08/2014 dated 24.10.2014) and imposed a penalty of Rs. 50,000/- under Regulation 18 and Regulation 20 of the CBLR, 2013. The Broker's licence of M/s. Barua and Choudhury, the present appellants, was thus restored. For the present proceedings, it may however not be necessary to specifically dwell upon the details of the aforesaid order passed under the provisions of CBLR, 2013.
6. We have heard the learned AR and it is his contention that the learned Commissioner while acquitting the CHA in terms of the proceedings initiated under the provisions of the act had failed to observe that Shri Himadri Narayan Choudhury, Partner of M/s. Barua and Choudhury worked as CHA/Customs Broker for M/s. Katras Ceramics and Refractories Pvt. Ltd. Dhanbad, for three such illegal export consignments which contained total 27.025 MT of Red Sanders, which are prohibited goods. He had lent his 6 of 18 Customs Appeal No. 76378 of 2016 Customs Brokers (CB) registration and acted as a CB on paper only to facilitate these exports against a financial consideration. Shri Himadri Narayan Choudhury had never met with any authorized person of the exporter M/s. Katras Ceramics and Refractories Pvt. Ltd. Dhanbad and the job was received through middle men. All arrangements were made by Shri Ashim Bose of B. Bose and Company. Shri Himadri Narayan Choudhury of M/s. Barua and Chowdhury, failed to discharge his responsibilities as Customs Broker. He also tried to mislead the investigations by manipulating the list of clients attached to the agreement made with M/s. B. Bose and Company regarding export/import clearance.
7. We note that the Review Committee, has based its opinion to recommend filing of appeal to the fact that the Adjudicating Authority in his Order No. KOL/CUS/Airport/Admn/28/2015 dated 24.07.2015 had held that Regulation 10 and 11(n) of CBLR, 2013 had been violated by the said CHA and had imposed a penalty of Rs. 50,000/- on the said CHA. However, while discussing the said order, in the present proceedings the imposition of penalty on the CHA has been overlooked by the Commissioner of Customs (Port), Kolkata. The committee was therefore of the view that the imposition of penalty indicated complicity of the appellant Customs Broker, in the instant case and therefore penal action under Section 114(i) of the Act, was warranted, hence the appeal.
8. From the facts on record, it is observed that the learned Commissioner vide his order No. KOL/CUS/AIRPORT/ADMN/28/2015 dated 24.07.2015 issued under the provisions of the CBLR, with reference to the charge and violations, has noted that after receipt of the copy of invoice number 01/14-15 dated 02.04.2014 of M/s. Katras Ceramics and 7 of 18 Customs Appeal No. 76378 of 2016 Refractories Pvt. Ltd. from Mr. Achinta Pan of M/s. B. Bose and Company with direction to file Shipping Bill they had so done on 02.04.2014 upon receipt of the necessary documents like, Packing List, C. Excise Invoice and ARE-I and that they had neither arranged any transporter nor any container agent for the instant export shipment. It is also indicated therein that the appellant did not receive any pick-up letter from the exporter and all these arrangements were made by Shri Ashim Bose of B. Bose and Company. The appellant broker is very categoric that their firm was assigned for customs clearance work only, and that they got information over phone regarding the entry of container into the docks by M/s. B. Bose and Co., that the other documents were handed over to Jetty Sirkar Kalyan Mukherjee by driver of the vehicle No. NL-01G-6893 on 04.04.2014.
9. We note that it is on record, that the Customs Brokers in effect has rendered extensive co-operation to the DRI during investigations and has been instrumental in getting the statements of various persons investigated like Shri Tarun Kumar Das, Vikram Bole, Sushanta Pan, Arunjyoti Roy Choudhury, Mohammed Zakir and Nemai Samanta recorded under Section 108 of the Customs Act, 1962 by producing them before the officers of the DRI investigating the said case of attempted export of red sanders.
10. After discussing and examining the role of the various persons involved viz. Tarun Kumar Das, employee of M/s. Katras Ceramics and Refractories Pvt. Ltd., and Vikram Bole, Director of M/s. Katras Ceramics and Refractories Pvt. Ltd. the learned Commissioner, with regard to the breach of the provisions of Regulations 10, 11(a), 11(d) and 11(n) of CBLR 2013, referred to the report of the inquiry officer wherein it was held that the respondent had entered into an agreement with B. Bose and Co. dated 8 of 18 Customs Appeal No. 76378 of 2016 16.09.2013, regarding export/import clearance of clients of M/s. B. Bose and Company on certain like related charges to be paid by them on behalf of M/s. Barua and Choudhury, the Customs Brokers and clearing/forwarding bills to the clients to be raised in the name of M/s. B. Bose and Company, while the taxes applicable to be paid by the latter, amongst others.
11. With regard to the role of the appellant into the alleged smuggling of red sanders, there is nothing in the show cause notice, to establish contumacious conduct or even impute knowledge of the said act of smuggling on the part of the Customs Broker. Even the independent proceedings held under the CBLR find no role of the appellant thereto. Relevant para of the said order is reproduced herein for records:
"29. Here I find that the subject export consignment was sealed in a container in which the 'red Sanders' was concealed in High Alumina Refractory Fire Bricks, the declared consignment. The DRI officials after examination found the container number CAIU 3577240 under Central Excise Seal under Invoice Number 01/2014-15 dated 02.04.2014; duly examined and sealed by the Inspector of Central Excise and Superintendent of Central Excise, Range-I, Dhanbad sealed with Central Excise lead seal bearing inscription "PAT NOCOL" and one time bottle seal (Shipper's seal) bearing number OOCLOOLCVE4828, the seals were found not to be tampered. I also find that the DRI could not disclose how and where the 'red sanders' were concealed in the said container in the garb of High Alumina Refractory Fire Bricks. Hence, the CB's role in the said smuggling of 'red sanders' is not clearly established."
(Emphasis Supplied) 9 of 18 Customs Appeal No. 76378 of 2016 In fact it is on record (refer para 58.2.1 of the impugned order) that the said order of the adjudicating authority has not been disputed by the authorities and had since attained finality.
12. As regards the argument of sub-letting of the licence, it may be pointed out that appropriate action in terms of said charge has been independently taken in separate proceedings against the appellant. To thus fall back thereupon as one of the grounds for invokation of penalty under Section 114(i) is neither befitting nor in the least called for, when the question concerned herein is altogether different.
13. It has come out from the investigations, that Raj Kumar Singh alias R.K Singh is the brain behind and the key person concerned. He alongwith his associates like Sushanta Pan, Nemai Samanta had planned and organized the attempted smuggling of red sanders. He remained untraceable throughout the proceedings and had forwarded fictitious export orders via e-mails. No evidence has been supplied by the department to establish that the appellants acted in league with R.K Singh or his associates. In fact it is observed from records that the respondent CHA was hired for customs clearing work only, after entry of container inside the docks and was not involved in any other activity leading to attempted export fraud. Thus, the arranging of containers/transporter etc. was all carried out by/at the behest of the said R.K Singh. The Commissioner has given a categoric finding that the agreement entered into by the appellants with M/s. B. Bose and Co., was with the objective of seeking shipment jobs against payment of costs and charges therefore.
13.1. In so far the show cause notice under the provisions of the Act is concerned it is to point out that while the learned Commissioner has made 10 of 18 Customs Appeal No. 76378 of 2016 elaborate discussions and given appropriate findings in respect of all the noticees; the role of the CHA has been adequately dealt by him in para 58 thereof. The said para is reproduced hereunder:
"58. As regard to the role played by M/s. Barua and Chaudhury, the CHA, I find that Shri Himadri Narayan Choudhury, Partner of M/s. Barua and Choudhury as CHA cleared the subject export consignments of M/s. Katras Ceramics and Refractories Pvt. Ltd. Shri Choudhury claimed to have procured the export clearance job from one Shri Ashim Bose, proprietor of B. Bose and Co. who procured this order from one Shri Babu Samanta of Janai, Banipur, Hooghly; that on receipt of KYC documents, company PAN card, Company profile, IEC of the said exporting firm, he had initiated the clearance work; that he never met with any authorized person of the said exporter; that neither he arranged any transporter nor any container agent for the export shipments; that he did not receive the pick-up letter from the exporter; that his firm was assigned for customs clearance work only after entry of container inside Dock; that he tried to mislead the investigation by manipulating the list of clients attached to the agreement made with M/s. B. Bose and Company regarding export/import clearance, wherein name of M/s. Katras Ceramics and Refractories Pvt. Ltd. Dhanbad was included at sl. No. 6 apart from other five exporters; that at the time of agreement, M/s. Katras Ceramics and Refractories Pvt. Ltd. not included as client in the aforesaid agreement as confirmed by Shri Ashim Bose, of M/s. B. Bose and Company; that M/s. Barua and Choudhury has received payments from M/s. B. Bose and Co. and didn't act as CHA of exporter M/s. Katras Ceramics and Refractories Pvt. Ltd., but acted as an agent of M/s. B. Bose and Co.
11 of 18 Customs Appeal No. 76378 of 2016 58.1. I also find from written submission of Shri Himadri Narayan Choudhury on behalf of M/s. Barua and Choudhury in reply to the SCN that the agreement, entered with M/s. B. Bose and Company, was with the objective to get shipment jobs against payment of costs and charges there for; that it can be safely concluded that such agreement entered into by them with M/s. B. Bose and Company does not contravene or violate the provisions of Regulation 10 of the Customs Brokers Licensing Regulations, 2013; that in the process of handling of export goods through Customs, the Customs House Agents or Customs Brokers only being authorized to undertake the clearance process on the basis of the particulars furnished in the Shipping Bills and the declaration made by the exporter, the appraiser is required to get the cargo arrived for clearance checked through the staffs employed by the Department; that the SCN is conspicuously silent on the assistance and co-operation rendered by them; that the Customs House Agents or Customs Brokers are only being authorized to undertaken the clearance processes on the basis of the particulars furnished in the shipping Bills and the declaration made by the exporter, the appraiser is required to get the cargo arrived for clearance checked through the staffs employed by the Department; that they have no obligation whatsoever to examine the consignment undertaken for clearance purposes in any manner whatsoever; that they verified the particulars given by the said exporting company in the said KYC Application From as well as those documents from the official websites of the Directorate General of Foreign Trade and the ministry of Corporate Affairs in due compliance of the provisions of Regulation 11 (n) of the Customs Brokers Licensing Regulation, 2013; that since been satisfied with the antecedents of the said exporting company, advising the said representative of the said exporting company over the mobile phone to comply with the 12 of 18 Customs Appeal No. 76378 of 2016 provisions of the Customs Act, 1962 in die discharge of the obligation under Regulation 11 (d) of the Customs Brokers Licensing Regulations, 2013, they undertook the clearance job from the exporter and process the clearance of the aid export consignment which has been declared by the exporter as High Alumina Refractories Fire Bricks; that prior to the clearance of the said consignments of High Alumina Refractories Fire Bricks in April, 2014, they had cleared two export consignments of the same products of the said exporter in January and February, 2014 and accordingly, vide letter dated 6th January, 2014, the authorized signatory of the exporting company had authorized them to undertake the clearance of the export consignments and comply with Customs and Dock formalities for and on behalf of the exporting company that it cannot be said under any circumstances that while handling the clearance of the said consignment in April, 2014 they had acted as a Customs Broker without any authorization in any manner whatsoever; that the container containing the said consignment of High Alumina Refractories Fire Bricks was found to be sealed with Central Excise Lead Seal and one time bottle seal (Shipper's seal) and as such barring the description of the consignment mentioned in the export documents, they had no occasion to verify the contents of the said container nor such verification of the said export consignment could have been done by them under any circumstances whatsoever; that barring the Export job, they were not engaged in the appointment of the transporter for the purpose of shipment of the said consignments from the factory premises of the exporting company situate at Dhanbad to the Netaji Subhas Dock, Kolkata nor had they arranged for the container for loading of the said consignment; that unless proper verification of the statutory documents pertaining to the vehicle and the Driver thereof are made, the port authorities do not proceed to issue the DDM permit nor 13 of 18 Customs Appeal No. 76378 of 2016 allow the driver or the vehicle driven by him to enter into the dock; that while undertaking the clearance of the said consignment of High Alumina Refractories Fire Bricks on the basis of the shipping documents handed over by the said exporting through M/s. B. Bose and Company, they had no knowledge of the actual content of the container nor they had any scope to examine or verify the content thereof inasmuch as the same was sealed with the Central Excise Lead Seal and One Time Bottled Seal; that the said notice is conspicuously silent on the assistance and co-operation rendered by them; that Shri T. K. Das, the authorized signatory of the said exporting company used to keep contact with them for export documentation purpose and the clearance job of the said declared consignment of high alumina refractories fire bricks was undertaken by them exclusive of any body or person whatsoever; that the agreement dated 16th September, 2013 entered into by and between them and M/s. B. Bose and Company it would also be crystal clear that the job of clearance was never assigned to M/s. B. Bose and Company in any manner whatsoever; that it would further transpire from the said agreement dated 16th September, 2013 that neither have they transferred their license nor have they sold the same in favour of M/s. B. Bose and Company or anybody or person in any manner whatsoever; that from the agreement dated 16th September, 2013 it would be apparently clear that upon payment of costs and charges by M/s. B. Bose and Company they had agreed to undertaken clearance of the consignments pertaining to the clients of M/s. B. Bose and Company; that they had procured the clearance job of the said declared consignment of high alumina refractories fire bricks through M/s. B. Bose and Company without, however, assigning any of their functions, responsibilities and obligations as a Customs House Agent or Customs Broker in any manner whatsoever; that by getting such 14 of 18 Customs Appeal No. 76378 of 2016 clearance job from M/s. B. Bose and Company and by fulfilling all their obligations while undertaking it they had not violated any of the provisions of the Customs House Agents Licensing Regulations, 2004 and/or Customs Brokers Licensing Regulations, 2013 in any manner whatsoever; that they denied and disputed that they did not verify the signature of the authorized signatory of M/s. Katras Ceramics and Refractories Private Limited and had no direct contact whatsoever in getting the documents pertaining to the export consignments, rather they had acted to facilitate third parties using their CHA registration; that they undertook the clearance of the said declared consignment of high alumina refractories fire bricks after verifying the antecedents of the said exporting company, correctness of the IEC as well as the identity and functioning of the said exporting company on the basis of the particulars and documents furnished by the said exporting company with KYC Form issued by them; that they deny and dispute that they have failed to discharge their responsibilities as a registered CHA as alleged or at all; that they denied and disputed that they have never manipulated any documents whatsoever including the list attached to the said agreement dated 16th September, 2013; that they denied and disputed that they for any gain whatsoever assisted the racket in the attempt of illicit export of Red Sanders in the name of the exporting company, namely, M/s. Katras Ceramics and Refractories Pvt. Ltd. and have thus failed to discharge their responsibilities properly/legally in dealing with the subject goods; that there is nothing on records which even remotely suggest their involvement in any manner whatsoever; that the notice issuing authority wrongly proceeded to issue the said notice despite active assistance and co-operation rendered by them in unearthing the racket; that having failed to show that they have malafied intention, they cannot be held liable for any penal action 15 of 18 Customs Appeal No. 76378 of 2016 under Section 114 of the Customs Act, 1962 in any manner whatsoever; that they have not received reimbursement of any expenses from anybody or person including Sri Sushanta Pan and Shri Nemai Samanta whatsoever; 58.2. On the issue of charges levelled and defence taken thereon by M/s. Barua and Choudhury - CHA (notice No. 5), I also find that in a self same allegations a show cause notice was issued to CHA notice under Regulation 20(1) of the Customs Brokers Licensing Regulations, 2013 and on completion of enquiry, the Inquiry Officer vide his report dated 23.04.2015 held that M/s. Barua and Choudhury has violated the provision of regulation 10, 11(d) and 11(n) of the CBLR, 2013. Based on this report Ld. Commissioner of Customs (Airport and Administration) vide his Order No. Kol/Cus/Airport/Admn/28/2015 dated 24.07.2016 held that regulation 10 and 11(n) of CBLR, 2013 has been violated by M/s. Barua and Choudhury. 58.2.1. While passing this Order Ld. Commissioner of Customs (Airport and Administration) observed in Para 29 of this Order that "the CB's role in the said smuggling of 'red sanders' is not clearly established". This order has not been disputed and therefore, attained finality.
58.2.2. As regard to the charged confirmed against M/s. Barua and Choudhury for violation of regulation 10 and 11(n) of CBLR, 2013, I find that these charges are mainly related to technical in nature, under which action can be taken under CBLR, 2013, I find that these charges are mainly related to technical in nature, under which action can be taken under CBLR, 2013 and no action lied under Customs Act.
58.2.3. Therefore, in absence of any evidence which would directly implicate the CHA, and in view of the above discussions, I am, therefore, inclined to 16 of 18 Customs Appeal No. 76378 of 2016 agree with the submissions of the CHA and hold that the conditions precedent for invocation and imposition of penalty under Section 114(i) of the Customs Act, 1962 on the CHA are not fulfilled in this case and in such a scenario, penal action under the said sections against them are neither technically nor legally sustainable. The charges against the noticee are, therefore, liable to be dropped. While taking this view, I have relied on the following decisions of the Ld. Tribunals.
· Somaiya Shipping Clearing Pvt. Ltd. Vs. Commissioner of 3 C. Ex., Mumbai .
· Roy's International Vs. Commissioner of Cus. (Prev.), 4 Kolkata .
· Cargo and Travel Services (P) Ltd. Vs. Commissioner of 5 Cus., Bangalore ."
14. Further, it is necessary that for imposition of penalty under Section 114(1) of the act, either the person concerned has abetted for which he should suffer means rea or else it needs to be shown that there has been an omission or commission of an act. Section 114 of the act is reproduced herein:
"SECTION 114. Penalty for attempt to export goods improperly, etc. - Any person who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to
3. 2006 (197) ELT 552 (Tri.-Mumbai).
4. 2008 (223) ELT 545 (Tri.-Kolkata).
5. 2010 (252) ELT 82 (Tri.-Bang.).
17 of 18 Customs Appeal No. 76378 of 2016 confiscation under Section 113, or abets the doing or omission of such an act, shall be liable,-
(i) In the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty [not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act], whichever is the greater;
[(ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of Section 114A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher:
Provided that where such duty as determined under sub-section (8) of Section 28 and the interest payable thereon under Section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent of the penalty so determined;] [(iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater.]"
It is seen that there has been nothing on record to impute any of the aforesaid ingredients on part of the respondent, in the absence of which no case is made by the appellants to subject the Customs Broker to the imposition of said penalty.
18 of 18 Customs Appeal No. 76378 of 2016
15. Under the circumstances in view of the fact that there is nothing on record to show any collusion on the part of the appellant, merely on the basis of assumptions and presumptions of certain monetary consideration, no penalty is imposable on the appellants. There is nothing from the investigations as could expressly implicate the appellants in the attempted fraud or impute their connivance or knowledge. In the absence thereof, there is no justification in the plea raised in appeal. We do not find any merit in the appeal of the department. The order passed by the lower authority calls for no interference and is sustained. The appeal filed by the department is dismissed.
(Operative part of the order was pronounced in open Court) Sd/-
(R. Muralidhar) Member (Judicial) Sd/-
(Rajeev Tandon) Member (Technical) K.M.