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TMI Blog2010 (5) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... the redemption fine reduced from ₹ 5 lakhs to ₹ 2 lakhs and penalty from ₹ 2 lakhs to ₹ 50,000/-. Penalty on partner - Held that: - The penalty on Shri Gulam Mohd. A. Wahab is not sustainable in view of the decision in the case of Jupiter Exports [2007 (6) TMI 2 - HIGH COURT, BOMBAY], wherein the Hon’ble High Court has held that no separate penalty be imposed on the partner when the partnership firm is penalized - penalty on partner set aside. Penalty on CHA - Held that: - CHA has acted in the bona fide belief documents supplied to him for preparing shipping bills and no statement of the CHA was recorded and there is no statement of the exporter that CHA was having any knowledge about misdeclaration of the goods - penalty on CHA waived. Penalty on appellant - Held that: - the Commissioner has given the benefit of doubt to the appellant as no investigation took place with regard to the role of the appellant. When the Commissioner has held that appellant has been given the benefit of doubt with regard to his actions as Apprising Officer in examining the shipping bills, hence protection u/s 155 of the CA, 1962 is available to the Appraising Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, department issued show-cause notice proposing to confiscate the goods, impose penalties and restrict the duty drawback. The matter was contested. Finally the matter was adjudicated by the Commissioner ordering the confiscation of the goods under Section 113 of the Act with an option to redeem the same against payment of fine of Rs. 5 lakhs. Penalties of Rs. 2 lakhs each imposed on GME and Gulam Mohad. A Wahab. Penalties of Rs. 1 lakh each was imposed on Sainath Clearing Agency and Shri Harsh Srivatava, Appraiser of Customs were also imposed. Against the above said order, the appellants are before me. 3.1 Shri J.C. Patel, learned Advocate appearing on behalf of M/s. GME and Gulam Mohd. A. Wahab submits that the exporter was exporting Kitchen and other household articles on drawback scheme. The said goods were purchased from manufacturers from various places and the same were brought to Saileela Warehouse at Jasai on 27-12-2006. He further submitted that the exporter did not know the exact quantity of the goods, the packing lists were produced by GME on the bills of regular supplier and accordingly they were filed. He further submitted that the goods were directly sent to wareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the foreign supplier. Hence, no misdeclaration could be found. In the case of Shree Ganesh International reported in 2004 (174) E.L.T. 171 (Tri.-Del.), the Tribunal found that declaration on the Bill of Entry on the basis of documents received by them from their foreign supplier, the test report of the foreign supplier, which clearly mentions that the goods are non-texturised fabrics. They have also claimed that a similar consignment imported by them from the same supplier had earlier been cleared as non-texturised polyester fabrics which gave them the bona fide belief that present consignment would also be of non-texturised variety. Hence, it was held that there was no mens rea and penalty was not imposable. 3.2 In alternate, Shri J.C. Patel, learned Advocate submitted that if it is to be held that the exporter has misdeclared the goods to avail higher duty drawback, the redemption fine and penalties on the appellants are highly excessive and there could be no penalty on Shri Gulam Mohd. A. Wahab being a partner of the appellant firm M/s. GME as held by the Hon ble High Court of Bombay in the case of Commissioner of Customs (EP) v. Jupiter Exports reported in 2007 (213) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had failed to perform his duty and simply examined the cargo in routine manner does not fasten any conclusion of negligence on part of the appellant. There was no shipping bills given to the appellant, hence no chemical examination was required to do. The appellant has executed his duties with due diligence in routine manner. Hence allegations against the appellants are not sustainable. There is no material on record to show that there was any connivance with the party and the officer, Hence, no allegation against the appellant is sustainable. To support this contention, he placed reliance on Commissioner of Customs, New Delhi v. Hargovind Export - 2003 (158) E.L.T. 496 (Tri.-Del.), wherein it was held that no material to show that the officers had connived with the exporter in misdeclaring the goods, only highlighting the dereliction of duty by the respondent not sufficient for imposition of penalty. He further relied on Commissioner of Customs, New Delhi v. M.I. Khan - 2000 (120) E.L.T. 542 (Tri.), wherein this Tribunal has held that protection against initiation of adjudication proceedings for imposition of penalty available to customs officers under Section 155 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ME. 6.2 I find that the redemption fine and the penalties are highly excessive on the appellant as contended by the learned Advocate. Accordingly, I reduce the redemption fine from Rs. 5 lakhs to Rs. 2 lakhs and penalty from Rs. 2 lakhs to Rs. 50,000/-. The penalty on Shri Gulam Mohd. A. Wahab is not sustainable in view of the decision in the case of Jupiter Exports (supra), wherein the Hon ble High Court has held that no separate penalty be imposed on the partner when the partnership firm is penalized. In this case, the firm M/s. GME has been penalized. Hence, no penalty is sustainable on the partner. Accordingly, penalty imposed on Shri Gulam Mohd. A. Wahab is waived. 6.3 M/s. Sainath Clearing Agency - I find that CHA has acted in the bona fide belief documents supplied to him for preparing shipping bills and no statement of the CHA was recorded and there is no statement of the exporter that CHA was having any knowledge about misdeclaration of the goods. In that situation, the penalty on the CHA is not leviable. The decision of V. Esakia Pillai (supra) is squarely applicable to this case, wherein this Tribunal has held that no evidence is available on record in form of confes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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