Custom, Excise & Service Tax Tribunal
Pankaj Babu Saini vs Cc, Ghaziabad on 17 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI COURT NO. IV SINGLE MEMBER BENCH Appeal No. C/58557/2013 (Arising out of OIO No.01/Commissioner/GZB/Cus/2012 dt.28.3.2013 Passed by the Commissioner of Customs, Ghaziabad) Pankaj Babu Saini Appellants Vs. CC, Ghaziabad Respondent
Appearance:
Shri Piyush Kumar, Advocate for the Appellants Shri B.B.Sharma,DR for the Respondent CORAM:
Hon'ble Mr. Manmohan Singh, Member (Technical) Date of Hearing/decision: 17.09.2014 FINAL ORDER No.53835/2014 Per MANMOHAN SINGH:
Learned Counsel, Shri Piyush Kumar, Advocate appeared for Shri Pankaj Babu Saini, CHA of M/s.Richi Rich Agro Foods Pvt.Ltd.
2. Commissioner of Customs, vide Order-in-Original No.1/Commissioner/GZB/CUS/2012 dt.28.3.2013 imposed penalty of Rs.1 lakh on the CHA for violation Customs House Agent Licensing Regulation, 2004 read with provisions of Foreign Trade (Development & Regulation) Act, 1992 he was under statutory obligation to vouch for authenticity of the declaration. CHA has failed to check the authenticity the cargo.
3. Learned Counsel invited attention to the Commissioners order wherein Commissioner on the basis of misdeclaration made by the exporter has also held CHA liable for contraventions. Learned Counsel submitted that basmati rice was cleared after due scrutiny of the documents and due examination of the containers by the Customs. Containers were subjected to examination by the port. Sample was drawn and on the basis of test report, it came out that the exporter has made misdeclaration. Instead of basmati rice, they actually exported non basmati rice in terms of DGFT Notification No.55(RE-2007)/2004-2007 dated 5.11.2008. He contended that the CHA was not involved in the loading of containers in the factory premises. His connivance in misdeclaration is not proved by any evidence. Samples were drawn and it was on the basis of test report , it was found that exporter has made misdeclaration. Exporter has rightly been subjected to redemption fine and imposition of penalty by the adjudicating authority.
4. On the other hand, learned DR pointed out that, the Commissioner has clearly observed that CHA was equally culpable for not adhering to statutory obligation vested in him inasmuch as he utterly failed to perform the responsibility of verifying the authenticity of the cargo prior to receipt of goods within the customs bonded warehouse.
5. Heard both sides and perused the records.
6. The short issue for consideration is whether CHA has knowingly participating in the misdeclaration and was involved helping exporter for exporting non basmati rice in the guise of basmati rice. From the facts it clearly comes out that container was stuffed in the factory of exporter and CHA was not present there. Neither circumstantial evidence which could show that CHA contributed to the misdeclaration nor any means-rea has been imputed to him. Even on examination of containers, the sample was drawn and sent to the laboratory and laboratory has rightly pointed out that rice contained in the container were non basmati rice and not basmati rice. I do not find any support or instance which could lead to CHA being made liable for imposition of penalty although I am aware that CHA has great responsibility in following export and import procedure requirement. Considering totality of facts and circumstances, I am not able to find active participation of CHA in misdeclaraton.
7. In view of above, penalty imposed on CHA is not justified and the same is set aside. Appeal is allowed.
(dictated & Pronounced in the open court)
(Manmohan Singh) Member(Technical) mk
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