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TMI Blog2005 (10) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... forgery of bills of entry and misappropriation of customs duty by M/s. Farport International, Customs House Agents, Chennai involving M/s. Hetero Drugs Limited., M/s. ITW Signode India Ltd., (appellant), M/s. Natco Pharma Limited, Hyderabad and others. Consequent to the investigations, Revenue proceeded against the appellants demanding duty and imposing penalty. The appellant approached CESTAT, Bangalore. The matter was remanded to the original authority for re-determination of duty demands and penalty if any on the appeal after hearing them in the matter. The CESTAT observed that in the de novo proceedings both sides could make use of the decision in case of Hetero Drugs Limited v. CC, Chennai vide Order Nos. 1594 and 1595, dated 12-12-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding nature of the agency. In terms of Section 147(3), an agent is also considered to be an importer of the goods in addition to the liability of the importer. The proviso to Section 147(3) states that if a short-levy or a non-levy arises as a result of an act which is not wilful in nature on the part of the agent, the amount is to be recovered first from the owner and then from the agent. (b) A principal is not to be considered guilty for the wrongful action of the agents, as held by the Bombay High Court in the case of M. Shashikant & Company and Others v. UOI reported in 1987 (30) E.L.T. 868 (Bom.). (c) The proviso to Section 147(3) of the Customs Act would come into play if the CHA had undertaken the malicious activity in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Since there is no finding in the impugned order that there was any collusion or intention to evade duty on the part of the appellants, the longer period of limitation cannot be invoked. (g) The very fact that out of the 718 Bills of Entry, the department accepts that in respect of 717 Bills of Entry, the duty payment has taken place proves the bona fides of the appellants, particularly when for the very 717 Bills of Entry, the appellants had sent the amounts to the CHA only. (h) Equal penalty under Section 114A is not sustainable in the absence of any allegation or finding of any collusion or intention to evade payment of duty on the part of the Appellants. For the same reasons, the interest under Section 28AB also cannot be demanded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orgery? The adjudicating authority in page 8 has stated "as discussed earlier the entries in the Bill of Entry were forged by the Custom House Agent of the importer". From this it is very clear that the CHA has committed the forgery. Since there is a departmental seal in the Bill of Entry, the possibility of connivance of departmental officers cannot be ruled out. In any case, no investigation appears to have been carried out on this aspect. It is also on record that the appellant issued cheque No. 399624, dated 21-9-1996 for an amount of Rs. 1,07,0007- to the CHA for payment of duty. Originally proceedings against the appellant were initiated in respect of 718 Bills of Entries. In respect of 717 Bills of Entries the demand to the tune of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importer of the goods in addition to the liability of the importer. The proviso to Section 147(3) states that if a short-levy or non-levy arises of an act of which is not wilful in nature on the part of the agent, the amount is to be recovered first from the owner and then from the agent. A conjoint reading of the above provisions would indicate that in terms of Section 147(3), if an agent is guilty of wilful act, negligence or default, he would alone be liable to pay duty, having been conferred with the status of an importer under Section 147(3) of the Customs Act, 1962. 7. In the present case, it is very clear that the non-payment of duty has arisen on account of the guilty act of the CHA and therefore, he alone would be liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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