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2006 (4) TMI 156 - HC - CustomsPrayer to set aside two orders passed by the Tribunal - Revocation of Customs House Agent's licence - violation of Regulation 14(d) - imposition of penalty - violation of the provisions contained in Sections either 113(f) or 113(g) - whether the procedure laid down under the Customs Act and the Rules and Regulations and Circulars made thereunder were strictly adhered to by the agent was not considered and once it is established that there had been violation, the Tribunal ought not to have set aside the order of imposition of penalty - HELD THAT - We find that it would appear from the statement made by Sri Paramangsu Bhowmik, the employee of the exporter that it was he who in his own hand-writing inserted the word 'Haldia'; therefore, we do not find any substance in the contention of Mr. Samaddar that Custom House Agent had really inserted the said word. Moreover, it appears from the record that in spite of the fact that IWAI Jetty is not a place of loading of export goods, under the direct supervision of Customs Officials and that too after accepting the appropriate fees for deputing the Customs Officials to supervise the loading, the Customs Officials cleared the said export. Once such fact is apparent, it necessarily follows that Customs Officials gave permission to export those goods from that place and the Tribunal rightly concluded that a Custom House Agent cannot be blamed for irregularities, if at all, committed by the Customs Officials. In this case, the Commissioner of Customs (Preventive) has not alleged connivance of the exporter or the Custom House Agent with any of the Officials of Customs but at the same time, blamed the Custom House Agent for such irregularity. It is, therefore, apparent that the goods were exported under direct supervision of Customs Officials either under the impression that the Commissioner of Customs was entitled to give such permission or through ignorance, but in view of precedents of this nature, the Custom House Agent did not commit any illegality by presenting the duplicate Bill with insertion of word 'Haldia' by the agent of the exporter. In the case before use, if the Customs Officers themselves have permitted exportation, there is every scope of bona fide belief of the Custom House Agent that such permission must be in accordance with the provisions of the Act. It is not the duty of a Custom House Agent to point out to the Assistant Commissioner of Customs or the Deputy Commissioner of Customs that their acts are not in conformity with the provisions of the statute or to advise them to act in accordance with law. Thus, there was no violation of Regulation 14(d). Similarly, according to Regulation 14(1), it is the duty of the Customs House Agent to see that all documents prepared or presented by him or on his behalf are strictly in accordance with orders relating thereto. In the case before us, the Customs Office having accepted the money deposited for supervising the export goods from Haldia, the document presented by him showing that the goods will be exported from Haldia cannot be said to be not in conformity with the orders relating to the said export. Thus, there was even no violation of Regulation 14(1). We, thus, find that the order of the Commissioner of Customs (Preventive), West Bengal revoking the licence of the Custom House Agent was on the face of it illegal as the agent did not violate either the Regulation 14(1) or the Regulation 14(d) and the Commissioner of Customs (Preventive) erroneously revoked the licence as if there had been violation of those provisions and the Tribunal rightly set aside the order. As regards the earlier order dated 4th May, 2005, we find that for the reason explained above, there was no just ground for imposition of penalty as there was no violation of the provisions contained in Sections either 113(f) or 113(g) of the Act or Section 33 or Section 34 of the Act. Even if there is violation of Section 33 under the active supervision of the Custom Officials after accepting the required fees for supervision of loading in terms of Section 34, in the absence of allegation of collusion or connivance with the Customs Officials, the exporter or the Customs House Agent cannot be held guilty or be penalised. The Tribunal by a detailed judgment pointed out that the goods were not prohibited items nor has there been any loss of revenue and as such, the imposition of penalty was totally unjust when no allegation of connivance of the respondent with the Officials of the Customs has been alleged. The position would have been different if the Commissioner of Customs alleged connivance of the respondent with the Officers of the Customs who passed the clearance and permitted deportation. We, thus, find no reason to interfere with the order passed by the Tribunal. The appeal is devoid of any substance and is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs.
Issues Involved:
1. Denial of permission for loading export goods at IWAI Jetty, Haldia. 2. Alleged interpolation in Bills of Export. 3. Imposition of penalties under Section 114 and Section 117 of the Customs Act. 4. Revocation of Custom House Agent (CHA) license under CHALR, 1984. 5. Tribunal's setting aside of penalties and revocation orders. Issue-wise Detailed Analysis: 1. Denial of Permission for Loading Export Goods at IWAI Jetty, Haldia: The Commissioner of Customs (Preventive), West Bengal, denied permission to M/s. Souvik Exports Ltd. (SEL) for loading Indian Milling Wheat at IWAI Jetty, Haldia, as it was not an approved place under Section 8 of the Customs Act. Despite this, SEL proceeded with the export by submitting Bills of Export through their Custom House Agent, M/s. Overland Agency (OLA). 2. Alleged Interpolation in Bills of Export: It was found that the word 'Haldia' was handwritten in the duplicate copies of the Bills of Export, which led to the loading of goods at IWAI Jetty, Haldia. This insertion was made by Sri Paramangsu Bhowmik, an employee of SEL, and not by the Custom House Agent, as confirmed in his statement under Section 108 of the Act. 3. Imposition of Penalties under Section 114 and Section 117 of the Customs Act: The Commissioner of Customs (Preventive) imposed penalties of Rs. 50,000/- on SEL and OLA each under Section 114 for violating Section 33 of the Act, and Rs. 10,000/- on M/s. Voyage Maritime Pvt. Ltd. under Section 117. The Tribunal set aside these penalties, stating that the goods were neither dutiable nor prohibited, and there was no mens rea on the part of the exporter or the Custom House Agent. 4. Revocation of Custom House Agent (CHA) License under CHALR, 1984: A notice under Regulation 23(1) of CHALR, 1984 was issued to OLA, alleging violations of Regulations 14(d) and 14(1). Despite OLA's defense that they acted in good faith based on past permissions and under the supervision of Customs Officers, the Commissioner revoked their CHA license and forfeited their security deposit. The Tribunal later set aside this revocation, citing no mala fide intent by the CHA and no loss to the nation. 5. Tribunal's Setting Aside of Penalties and Revocation Orders: The Tribunal concluded that the Custom House Agent could not be blamed for the irregularities committed by the Customs Officials, who permitted the export under their supervision. The Tribunal emphasized that the CHA had no mala fide motive and acted based on previous permissions granted by the Customs Officials. The Tribunal also noted the absence of any loss of revenue or prohibited items, and no allegation of connivance with Customs Officials. Conclusion: The High Court upheld the Tribunal's decision, finding no violation of Regulations 14(d) or 14(1) by the Custom House Agent. The Court emphasized that the CHA acted in good faith, and the Customs Officials themselves cleared the goods. The appeal was dismissed, affirming the Tribunal's orders to set aside the penalties and revocation of the CHA license.
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