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2023 (8) TMI 907 - AT - CustomsImposition of penalty u/s 114AA on Importer and u/s 112 (a) on CHA - Violation of provisions of the Customs Act, 1962 - allowing re-export of the goods which has been detected with some hazardous material - HELD THAT - The Bills of Entry were presented before the Customs Officers at Mahadipur LCS for examination. The goods were assessed and customs duties were also paid. However, the consignments were taken out without examination report and out of charge certificate from the concerned officers of the LCS, thus the provisions of Section 47 of the customs Act are violated. It is observed that Suseth Pal and Khalid Biswas are Partner and Employee of the CHA Firm engaged by the importer for the purpose of clearance of the goods, by filing the Bills of Entry and observing the customs formalities of clearance. From the findings recorded in the impugned order, it is held that they have filed the Bills of Entry properly and presented them for examination and assessment. After assessment, customs duty has also been paid. Since the Bills of Entry were not signed and out of charge certificate was not given, they advised the importer not to move the goods out of the LCS in writing vide their letter dated 03.03.2015. However, the importer took the risk and moved the goods out of the LCS on his own, without listening the advice of the CHA - the CHA cannot be held responsible for the violations committed by the importer, without listening the advice of the CHA. Accordingly, the penalty imposed on Shri Suseth Pal, Partner of the CHA Firm and Shri. Khalid Biswas, Employee of the CHA Firm, under Section 112(a) of the Customs Act, 1962 are not sustainable. Penalty imposed on Shri. Biplab Mohanta, Authorized Representative of the importer Uttam and Brothers - HELD THAT - There is no evidence available on record to establish that he was involved in removing the goods out of the LCS without Out of charge certificate . Shri Uttam Sarkar, in his statement dated 16.042015 categorically stated that due to security reasons they have taken out the said three consignments from the LCS without any examination report and without out of charge order issued by the proper Customs officers at his own risk and responsibility. The findings in the impugned order also indicates that the trucks containing the goods were removed from the LCS without the out of charge certificate, by the importer Uttam Sarkar on his own, by taking the risk associated with such offence on himself. Under these circumstances, an employee of the importing firm cannot be held responsible for the offence wantonly committed by the importer Uttam Sarkar. Accordingly, the penalty imposed on the Authorized Representative Shri. Biplab Mohanta under Section 112(a) of the Customs Act, 1962 is not sustainable. Order for re-exportation granted by the Commissioner - HELD THAT - The Test Reports indicate that the instant consignment contains hazardous azo dye Benzedrine more than 50ppm which is prohibited for importation by the government of India under Section 6(2) (d) of the Environment (Protection) Act, 1986 (29 of 1986) read with Rule 13 of the Environment (Protection) Rules, 1986. The Azo Dye testing in respect of the readymade garments is done to prevent the use of harmful chemicals in readymade garments, which may cause cancer to human skin, and even to the bladder, ureter and other organs. Therefore, the goods detected with Benzedine more than 50ppm were required to be ordered for destruction. Section 125 of the Customs Act allows the adjudicating Authority to give an option to the importer to redeem the goods on payment of Fine inlieu of confiscation. In the instant case, as the goods were hazardous in nature, releasing it in the domestic market or destroying it may harm the environment. Accordingly, the adjudicating authority has allowed the goods to be re-exported on payment of Fine - there is no violation of any of the provisions of Customs Act, 1962,in granting re-export against payment of fine. Accordingly, the order of the Commissioner allowing re-export of the hazardous goods on payment of Fine is upheld. Penalty has not been imposed on Shri. Uttam Sarkar and Shri. Suseth Pal under Section 114AA of the Customs Act, 1962 - HELD THAT - In terms of Section 114AA of the Customs Act, 1962, if a person knowingly or intentionally makes, signs or uses, or causes to be made signed or used, any declaration, statement or document which is false or incorrect in any material particular, in the transaction of any business for the purposes of this Act, shall be liable to a penalty not exceeding five times the value of goods - Section 114AA of the Customs is very specific about purposes for which the penalty under this section is imposable - the findings of the adjudicating Authority agreed upon that the Shri. Uttam Sarkar and Suseth Pal has not intentionally or knowingly made, signed or used any declaration/statement or documents for transaction of business under the Customs Act, 1962 . There is no evidence brought in by the investigation to substantiate the allegation against them for imposition of penalty under section 114AA of Customs Act, 1962. Hence, they are not liable to penalty under Section 114 AA of the Customs Act, 1962. Appeal allowed.
Issues Involved:
1. Imposition of penalties under Section 112(a) of the Customs Act, 1962. 2. Non-imposition of penalties under Section 114AA of the Customs Act, 1962. 3. Order for re-export of hazardous goods. Summary: 1. Imposition of Penalties under Section 112(a) of the Customs Act, 1962: Three appeals were filed against the imposition of penalties on the appellants under Section 112(a) of the Customs Act, 1962. The adjudicating authority had imposed penalties on Shri Uttam Sarkar, Shri Biplab Mohanta, Shri Suseth Pal, and Shri Khalid Biswas for their roles in the clearance of goods without proper examination and 'out of charge' certificate. The tribunal observed that the appellants, being employees or representatives of their respective firms, had acted as per instructions and had no direct involvement in the misdeclaration of the goods. The tribunal held that the penalties imposed on Shri Suseth Pal and Shri Khalid Biswas were not sustainable as they had advised the importer not to move the goods without proper clearance. Similarly, the penalty on Shri Biplab Mohanta was also deemed unsustainable as he was merely following the importer's directions and had no knowledge of the misdeclaration. 2. Non-imposition of Penalties under Section 114AA of the Customs Act, 1962: Two appeals were filed by the Department against the non-imposition of penalties on Shri Uttam Sarkar and Shri Suseth Pal under Section 114AA of the Customs Act, 1962. The tribunal upheld the adjudicating authority's decision, stating that there was no evidence to prove that the appellants had knowingly or intentionally made, signed, or used any false declaration, statement, or document. The tribunal agreed with the findings that the appellants had not engaged in any fraudulent activities and hence were not liable for penalties under Section 114AA. 3. Order for Re-export of Hazardous Goods: The Department also appealed against the order allowing the re-export of goods detected with hazardous material. The tribunal observed that the adjudicating authority had correctly allowed the re-export of the goods containing hazardous Azo dye Benzidine, in compliance with the relevant regulations and notifications. The tribunal found no violation of the Customs Act, 1962, in granting re-export on payment of a fine and upheld the order of the Commissioner. Conclusion: The tribunal allowed the appeals filed by the appellants (Shri Suseth Pal, Shri Khalid Biswas, and Shri Biplab Mohanta) and rejected the appeals filed by the Department. The penalties imposed under Section 112(a) were set aside, and the non-imposition of penalties under Section 114AA and the order for re-export of hazardous goods were upheld.
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