Customs, Excise and Gold Tribunal - Tamil Nadu
M/S. Aspinwall & Co. vs Commissioner Of Central Excise, Trichy on 20 April, 2001
Equivalent citations: 2001(76)ECC318, 2001(132)ELT644(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. The Appellant is a Customs House Agent. He is challenging the confirmation of demand of short levy under Section 28(2) of Customs Act 1962, amounting to Rs. 7,64,867/- against him. It is his submission that all shorts levies have to be confirmed only against the importer, who filed Bill of Entry, viz. M/s Pest and Pesticides who imported a consignment Cyanuric Chloride. The plea was rejected by both the authorities on the ground that as the Customs Agent had filed the Bill of Entry on behalf of the importer. Therefore, he is liable to pay the short levy under section 147 of the Customs Act, 1962. Besides penalty of Rs. 10,000/- under Section 112 of the Customs Act, 1962. The Commissioner (Appeals) accepted only with regard to the setting aside of the penalty against the appellants. However, he confirmed the demands against Customs Agents, as he had filed the Bill of Entry on behalf of the importer.
2. The Ld. Counsel submits that authority's action in confirming the duty on the CHA is against the law and the ruling laid down by the Hon'ble Apex Court in the case of C.C., Cochin vs. Trivandrum Rubber works Ltd. 1999 (81) ECR 171 (SC) Krisons Electronic Systems Ltd. vs. CC, Calcutta wherein this aspect has been gone into in great detail and it has been clearly held that the function of CHA as an Agent is for only limited purpose of arranging release of the goods and once the goods are cleared, he has no further function and he is not liable for any duty liability or other actions, which are required to be initiated only against the importer. The Tribunal in the above cited case referred to the entire case law including the judgement delivered in the case of CC., Cochin vs. Trivandum Rubber Works Ltd. (supra). He further submits that Section 147 of the Customs Act 1962 lays down the liability on the agent of the principal meaning thereby the power of Attorney holder of the Importer and not with the CHA, as has been clarified in the Tribunal's judgement. He submits both the authorities hold the CHA as an importer in terms of section 147 CHA. It is against the principle of law laid down in that section and the ratio of the cited judgement.
3. We heard the Ld. DR. The Ld. DR reiterates the departmental findings.
4. On a careful consideration of the submissions made by both sides, we find lot of force in the submissions made by the Ld. Counsel. His submission is supported by the ration of the judgement rendered in the case of CC, Cochin vs. Trivandrum Rubber Works Ltd. (supra) and that of Tribunal judgement in the case of Krison Electronic Systems Ltd. vs. CC, Calcutta (supra). Both the judgements deal in great detail about the function of the CHA as an Agent and his responsibility is to a limited purpose of arranging release of the goods, and once the goods are cleared he has no further function. The reference to the Agent under Section 147 is to the Agent of the Principal i.e. Power of Attorney holder of the importer and where the relationship of "master and Servant" come into play and in such cases the act of an agent is held to be an act of the Principal. While CHA is acting under a separate Regulations and his function under the licence is only to present papers for clearance of imported goods under Bill of Entry and not to act as an contemplated under Section 147 of the Act. Therefore, both the authorities were clearly in error in the application of law. In view of the judgements cited above, the impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Order dictated and pronounced in the open court)