2008 (10) TMI 216 - AT - Customs

Penalty on CHA - Abetment in Fraud - Claim of undue duty drawback - Held that - In the absence of any finding of the active involvement of the CHA in any act of omission or commission which had rendered the export goods liable for confiscation under Section 113, the penalty imposed under Section 114 is liable to be set aside. No offence has been found to have been committed by the CHA for which it could not be penalized under a specific provision of the Customs Act. Therefore, the penalty imposed under Section 117 is also not called for. In the circumstances, penalties imposed on the appellants are set aside and these appeals allowed.

Summary

Issues:
Penalties imposed on a Customs House Agent (CHA) under Sections 114 and 117 of the Customs Act, 1962 for facilitating fraudulent export activities by unscrupulous persons.

Analysis:

1. Penalties Imposed on CHA:
The appeals were filed by M/s. Airtravel Enterprises India Limited (AEIL) against penalties imposed under Sections 114 and 117 of the Customs Act, 1962. The penalties were imposed due to attempts by unscrupulous persons to export goods at inflated values to claim inadmissible drawback. The CHA, AEIL, was found to have not meticulously followed regulations, facilitating the fraudulent activities. Penalties were imposed for failure to conduct business in accordance with CHALR 2004.

2. Legal Arguments:
The appellant's counsel argued that penalties on the CHA were not justified as there was no direct evidence implicating the CHA in the fraudulent activities. Citing various case laws, it was contended that penalties cannot be imposed on a CHA without evidence of active involvement or mala fide intentions. The absence of findings implicating the CHA in the fraudulent transactions was highlighted as a reason for vacating the penalties.

3. Response by JDR:
The JDR argued that the CHA's failure to promptly disclose irregularities indicated complicity in the fraudulent transactions, warranting the sustenance of penalties. It was emphasized that the CHA had not verified the bonafides of the parties involved in the export transactions, leading to the fraudulent activities.

4. Judgment and Conclusion:
Upon careful consideration of the facts and submissions, it was observed that the CHA had processed export documentation without verifying the parties' bonafides, leading to misdeclaration and fraud. However, there was no finding of active involvement or abetment by the CHA in the fraudulent activities. Citing precedents, it was concluded that penalties could not be imposed on the CHA for failure to verify antecedents without evidence of direct involvement. As no specific offence was found, the penalties under Sections 114 and 117 were set aside, and the appeals were allowed.

This detailed analysis of the judgment highlights the issues involved, legal arguments presented, responses by both sides, and the ultimate conclusion reached by the Appellate Tribunal CESTAT, Chennai regarding the penalties imposed on the Customs House Agent.