2024 (8) TMI 1065 - AT - Customs

Levy of penalty u/s 112(b) of CA - existence of proper evidence or not - appellant had obtained PNR movement documents from the steamer agent for movement of the subject cargo from the port to the concerned CFS and that the imported cargo was moved using the trailers owned by the importer/CHA - HELD THAT - The charges made by revenue are not substantiated by the statements recorded in this case. The appellant had in his statement dated 13.3.2001 and 20.02.2001 stated that the consignments were moved to various CFSs by the steamer agent M/s. JVP Container Lines Pvt. Ltd. His statement was also corroborated by the Accountant of M/s.JVP Container Lines Pvt. Ltd who has mentioned in his statement dated 14.2.2002 that the delivery order and PNR movement copies for seven containers were issued as per the instructions of M/s.Blue Bay Logistics and M/s.Vantec Systems. The penalty imposed on the appellant cannot be sustained. Similarly the prayer of revenue to set aside and the appellants CHA licence is also not maintainable. The penalty imposed on the CHA by the impugned order be set aside and he may be permitted to operate the CHA licence. The impugned order is partly modified accordingly.

Summary

Issues:
1. Penalty imposed on CHA under sec. 112(b) of the Customs Act, 1962.
2. Confirmation of penalty of Rs.1,50,000/- under sec. 112(a).
3. Appeal against allowing the CHA to operate with his license.

Detailed Analysis:

1. The case involved two appeals arising from a common Order in Appeal passed by the Commissioner of Customs (Appeals - II), Chennai. The appellant, a Custom House Agent (CHA), was penalized Rs.1,50,000 under sec. 112(b) of the Customs Act, 1962, for allegedly conspiring with an importer to clandestinely clear goods concealed in containers declared as lunch boxes. The appellant challenged the penalty in Appeal No. C/42024/2018, while the department filed Appeal No. C/42153/2018 against allowing the CHA to continue operating with his license.

2. The appellant's representative argued that the penalty was unjustified as there was no concrete evidence linking the appellant to the alleged concealment of goods. It was contended that the penalty under sec. 112(b) could only be imposed if there was positive evidence of the appellant's involvement, which was lacking in this case. Reference was made to a previous case to support the argument that penalties are not maintainable without sufficient evidence. The appellant sought the Tribunal to set aside the penalty and deliver justice.

3. On the other hand, the department's representative claimed that investigations revealed the appellant's active role in facilitating the movement of containers containing undeclared goods. Evidence suggested that the appellant colluded with the importer to avoid proper verification procedures and played a part in the unauthorized clearance of goods. The department argued that the penalty was warranted, and the order allowing the CHA to retain his license should be overturned.

4. Upon hearing both sides, the Tribunal found that the revenue's charges were not substantiated by the statements recorded in the case. The appellant's statements and corroborating evidence indicated that the movement of consignments was conducted as per instructions from the steamer agent and the importer, with no direct involvement of the CHA in the alleged misconduct. The Tribunal concluded that the penalty imposed on the appellant was unjustified, and the request to cancel the CHA license was also deemed unsustainable.

5. Consequently, the Tribunal set aside the penalty imposed on the CHA and allowed him to continue operating with his license. The impugned order was partially modified to reflect this decision. The appellant was entitled to any consequential relief as per the law. Both appeals were disposed of accordingly, with the order pronounced in open court on a specified date.