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TMI Blog1991 (8) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... d a Shipping Bill for the export of 38 packages of what was described in the Shipping Bill as Paper Mask , the exporter being one Jean Sala, a French national. The goods were declared as Tourist Purchase . The said exporter had signed the declaration in the Shipping Bill about the truth of the statements made therein. When the packages were produced for Customs examination and two packages were examined, they were found to contain Papier Mache boxes therein, some of which were found to be heavier than the others. They were forced open in the presence of the representative of the Customs House Agents, M/s. Jeena Co. and two independent witnesses. They were found to contain a Clarkish green/brown coloured semi-solid substance with a pungent smell. On chemical test the said substance was found to be Hashish. The tourist exporter who had sought to export the same and who had signed the declaration in the Shipping Bill was not found in Grand Hotel, Calcutta, which address had been given in the Shipping Bill. He was later traced in Port Blair, Andamans. After necessary investigations the Assistant Collector of Customs, Special Investigation Branch, Customs House issued a show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m before the Additional Collector during the personal hearing granted to them on 29-1-1988 but the same had not been properly recorded and dealt with by him. It was urged in the appeal that if the person lending his support does not know or has no reason to know about the commission of offence, he cannot be said to have intentionally aided or facilitated the commission of offence and that he was an abettor. 5. In the appeal filed by Shri Janardhan Thakur it has been urged that the first show cause notice was not issued to him and that in the supplementary notice, no allegation was made against him that he had any knowledge that the consignment of the exporter Mr. Jean Sala contained Hashish. On the other hand, he (Shri Thakur) had no scope or opportunity of having any such knowledge. It has been submitted that the adjudicating authority had proceeded on the basis of conjecture and assumption that he would have known of the steps taken in the Office of M/s. Jeena Co. Without establishing the allegation of aiding and abetting, the Additional Collector had imposed penalty against him. Aiding and abetting presuppose prior knowledge and without any allegation of knowledge of commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abetment. What has been alleged against them does not point to any knowledge on the part of the appellants about the common issues of any offence by the exporter Mr. Jean Sala, much less the offence of export of Hashish. Whatever has been held out against them relate to action on their part as a Customs House Agent. As a client of theirs Mr. Jean Sala had exported two consignments in the past through them. There was no irregularity in respect of such exports. In good faith they handled the present export also. For this purpose, the Shipping Bill was prepaid by them. For exports of tourist goods they have to see that the encashment certificate is there which is issued by the Bank and the invoice. Here the invoice was prepared by the tourist which is a normal feature in such cases. The Bank had given the encashment certificate. They had committed no irregularity in handling the export work of Mr. Jean Sala. It is not correct that they had omitted to do any prescribed requirement. They had undertaken the work of this exporter with proper and sufficient authority. There is no form in which the exporter should authorise them to do this work. About the point that they had not taken any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst him are based on surmises, assumptions and presumptions and not based on any facts. The allegation that he asked Mr. Jean Sala to prepare a fresh invoice for the export proves nothing against them as this was the correct procedure to be followed in such cases. When tourists visiting the country purchase articles and export them they can export them in their name and they actually do so. Hence Shri Bhattacharya did not commit any irregularity when he got the invoice prepared for being signed by Mr. Jean Sala. Definitely Shri Bhattacharya had assisted him in the preparation of export documents but that was not for export of Hashish. The services provided by him in the matter were in the normal performance of his duties as an employee of the Custom House Agent. In the circumstances Shri Kapoor urged that the charges have not been established against Shri Bhattacharya and the appeal be allowed, setting aside the order. 9. Shri M.N. Biswas, learned Senior Departmental Representative appeared for the Respondent Collector. He opposed the contentions raised by Shri Kapoor and justified the order. He made a strong plea that the order of the Collector of Customs exonerating M/s. Jee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no bearing on the appeal filed by their employees namely S/Shri Janardhan Thakur and K.K. Bhattacharya. The Tribunal is not bound by the findings of the Collector in the other proceedings even if he had observed in his order that the charge of abetment had not been proved. In this connection, he relied upon the observations of the Honourable Supreme Court reported in 1988 (4) SCC 1. On the subject of the knowledge of Shri Bhattacharya about the attempted export of Hashish, Shri Biswas submitted that even if argument s sake it is conceded that he did not know that Hashish was being exported there was lot of hush-hush in the whole transaction and he was fully aware of the same. Shri Biswas, therefore, pleaded that all the appeals may be dismissed. The penalties imposed, he pointed out, were commensurate with the gravity of the offence and the value of Hashish sought to be exported. 10. With the permission of the Bench, Shri Kapoor, learned Counsel, for the appellants gave a brief rejoinder to the contentions raised by Shri Biswas. He pointed out that the charge raised against the appellants is abetment in export of Hashish. This has not been established at all. Even if the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved not within the ambit of the CHA Licensing Regulations, 1984 or of any provision of Customs Act, 1962, allied Acts/Rules/Regulations as such the crucial charges of aiding abetting the attempts to export Charas/ Hashish totally fails to get proved. It is curious that in the proceedings under the CHA Licensing Regulations, the Collector had made an observation about the allegations being not within the ambit of CHA Licensing Regulations or any provision of Customs Act, 1962, allied Acts/Rules/Regulations. No proceedings under the provisions of Customs Act were before him. We have not had the opportunity of perusing the Inquiry Report on the basis of which the Collector has apparently come to the conclusion which he did. At this stage, however, we do not want to call for the same and we would base our decision only on the impugned adjudication order and the arguments for and against it. The involvement of the three appellants in the chain of events leading to the detection and failing of the attempted export of Hashish is seen to be of varying degrees. Shri K.K. Bhattacharya is the employee of the Custom House Agent firm who appears to have handled the work he being the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh. The plea had been advanced on his behalf that he had received the rubber stamp from the tourist and had kept it with him for custody as requested by the latter. It had also been pleaded that he did not know that the invoice given to him by Mr. Jean Sala was of a non-existent firm and that he had handled the entire work in good faith, taking Mr. Sala to be a tourist who wanted to export normal tourist goods. The departmental investigation as reflected in the show cause notice and more particularly in the adjudication order do not cast a serious doubt on the probability of the defence plea. Before driving the charge home, the department should have conducted full investigation in the matter and ascertained the facts which would justify the finding that Shri Bhattacharjee knew the full facts and knowingly had assisted Mr. Jean Sala in the preparation of the export documents. There is nothing in the impugned order to establish that Shri Bhattacharjee knew that M/s. Doona sons were a non-existent company and that the rubber stamp purporting to be of that company given to him by Mr. Sala was a fake one. His keeping the invoice of M/s. Doona Co. in his table drawer does not point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d documents had been handled by Shri Bhattacharjee. In view of our finding in respect of the letter, the finding in regard to Shri Janardhan Thakur cannot be different. He also stands charged with the offence of abetment of attempted export of Hashish and not with the preparation of false documents. The allegation that he had acted on behalf of Mr. Sala without having proper authority from him has been countered with the stand that there was proper authority and that there is no prescribed form of such authority. The tourist had come to them for export of tourist material in the past and nothing irregular had taken place. In good faith, they handled this work. The tourist had signed the required declaration and he had accepted the same as correct and signed the Shipping Bill as his agent. This is the normal course of business they follow and he had no reason to suspect anything irregular. He had no clue about the false description in the Shipping Bill, as it turned out later on. We accept his plea, giving him the benefit of doubt and allow his appeal. The order is set aside as far as he is concerned. 14. For the same reason, we accept the pleadings on behalf of the appellants M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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