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2017 (5) TMI 1179 - AT - CustomsImposition of penalty u/s 114 (iii) of the CA and u/s 117 of the CA on CHA - over-valuation of export - Held that - the appellant filed shipping bills on the basis of documents received by them. If there is any difference in the value of the export consignment, the CHA cannot be held responsible for the same as it is not the duty of the CHA to adjudge the correct value of the goods. There is virtually no evidence on record to show that he was aware of the over-valuation of the export consignment and he simplicitor proceeded by the declaration made by the exporters. In such a scenario, the appellant cannot be held liable for any aiding and abetting and consequently to penalty - appeal allowed - penalty set aside - decided in favor of appellant.
Issues:
Imposition of penalty on a Customs House Agent (CHA) under sections 114 (i) and 114 (iii) of the Customs Act and section 117 of the Customs Act. Analysis: The case involved the imposition of penalties totaling Rs. 21 lakhs on a CHA for filing shipping bills for export of readymade garments of manmade fabric, which were found to be of inferior quality and over-valued with intent to claim erroneous duty draw back. The CHA's employee admitted to filing the bills without physically verifying the exporter's address, which was later found to be fictitious. The Commissioner held the CHA responsible for aiding the exporter in fraudulent exports, but did not make the employee a noticee in the show cause notice, leading to the penalty imposition on the CHA firm. The Tribunal analyzed previous judgments like Nirmal Kumar Agarwal vs. Commissioner of Customs and Prime Forwarders vs. Commissioner of Customs, emphasizing that penalties cannot be imposed on a CHA without evidence of their involvement in fraudulent activities. The CHA's role was noted to be limited to facilitating proper document filing, not verifying the value of goods. In this case, the CHA acted based on received documents, and there was no evidence to suggest awareness of over-valuation, leading to the conclusion that the CHA could not be held liable for aiding and abetting the exporter. Furthermore, the Tribunal referred to the case of Adani Wilmar Ltd. vs. Commissioner of Customs, highlighting that penalties for non-following of Know Your Customer (KYC) norms of CHA licenses fall under CHALR regulations, not the Customs Act. The lack of evidence showing the CHA's awareness of irregularities by the exporter justified setting aside the penalties imposed. The Tribunal concluded that the CHA's failure to physically verify the exporter's address did not establish knowledge of over-valuation, warranting the reversal of penalties imposed on the CHA. In light of the discussion, the Tribunal set aside the penalties imposed on the CHA, allowing the appeal with consequential relief.
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