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TMI Blog2009 (1) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... rics declaring inflated value and had obtained undue drawback. Adjudicating allegations framed against the exporters, their associates and the CHA who handled export documentation for the seized goods, the impugned order was passed. The Commissioner found that sale proceeds for the exports already made had not been received from the foreign buyers. Accordingly, he demanded the amounts of drawback already sanctioned to the exporters, confiscated export goods covered by the two shipping bills and imposed penalties on the persons who were found to have been involved in the illegal export. The subject application for waiver of predeposit and stay of recovery has been filed by Shri M.J. Joshy, Managing Partner, M/s. Premier Shipping Agency (CHA) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been planned and executed by the exporter. The duties and responsibilities of the CHA as per the cited Regulations of the CHALR, 2004 did not requite nor was it possible for the CHA to prevent the offence committed by the exporter. The CHA was not an agent of the exporter as regards the various acts committed by the exporter. He relies on case law in support of the arguments. As regards the finding that CHA had acted on instructions of one Shri A.P. Ravi who was neither an exporter nor an authorized person, it is submitted that there was no allegation or finding that the CHA had acted without authorization. It is not always the case that the exporter himself dealt with CHA; exporter got his work done through his staff. Ld. SDR reiterates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round to impose personal penalty under Section 117 of the Customs Act, 1962 unless there is evidence to show that the failure was on account of mala fide intention . (3) In the decision of the Tribunal reported as 2001 (132) E.L.T. 644 (Tri.-Chennai) (Aspinwell Co. v. CCE, Trichy), it was held that the CHA acted under Regulations framed for the purpose, to present papers for clearance of import of goods under Bill of Entry and not to act as an agent as contemplated under Section 147 of the Act. It was also held the authorities had erred in treating the CHA as an agent of the importer under Section 147 of the Act. 4. I find that the appellant has made out a strong prima facie against impugned penalty. Accordingly, it is ordered tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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