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TMI Blog2010 (4) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard the learned Advocate, Shri S.K. Mehta on behalf of the Appellants, M/s. Associated Clearing Agency, Shri Malay Sarkar and Shri Khurshid Rehan. None appeared on behalf of M/s. United Liner Agency when the matter was taken up for hearing in the forenoon and heard at length. However, in the afternoon, Shri Biswas, learned Advocate asked for adjournment on the ground that his Senior Advocate on record is busy in some other matter. As the matter has been dealt with for a considerable time in respect of three of the Appellants and the request has been made belatedly and without valid reason, the request for adjournment is rejected. 3.1 The relevant facts in brief are that M/s. United Traders, New Delhi imported consignments and declared them to be Christmas Lights and filed bills of entry. In one case, the consignment covered by bill of entry No. 1-322 dated 13-10-2003, was assessed by the Group; the consignment was subject to examination by Shri Khurshid Rehan, Appraiser, and "out-of-charge" was given. Subsequently, the Officers of DRI, on the basis of intelligence, intercepted the consignment and found the consignment to be misdeclared. As against 875 packages of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Malay Sarkar, Shri Khurshid Rehan and M/s. United Liner Agency Pvt. Ltd. 6. Learned Advocate, Shri Mehta submits that Shri Malay Sarkar knew the persons behind M/s. United Traders; that he introduced Shri Sangeet Agrawal to the persons concerned with M/s. Associated Clearing Agency who filed bills of entry based on documents produced by the said importer; as Customs House Agent, M/s. Associated Clearing Agency collected the normal fees for the services rendered; that the assessment was done in respect of one consignment as per the Examination Order given by the Group and as per the direction given by the Examining Appraiser, 10 selected packages were made available for the examination and no discrepancies were found. None of his clients namely, M/s. Associated Clearing Agency, Shri Malay Sarkar and Shri Khurshid Rehan, were having any knowledge about the existence of CFL in the consignments declared as Christmas Lights. They had no intention to evade the Customs Duty. The allegation in the show cause notice and the findings of the Commissioner also did not attribute knowledge about the misdeclaration and any intention to evade duty on their part. Under these circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay any possibility of their active involvement in the duty evasion and even the misdeclaration attempted by the importer. On the other hand, I find serious dereliction of duty on their part for not having facilitated proper examination of the goods. Once it has been admitted by one of their employees that only 10-15 cartons from the front two rows of the container was opened, it was clear that as Custom House Agent, they have failed to take responsibility in facilitating proper examination of the goods. If they would have been more vigilant and would have ensured facilitation of proper examination of the goods in respect of bill of entry I-322 dated 15-10-03 the modus operandi of the importer would have been clearly unearthed before the consignment was intercepted by DRI. Therefore, I am of the opinion that although no charge of connivance can be attributed to the Custom House Agent, M/s. Associated Clearing Agent, the dereliction of the duty and corresponding facilitation in the evasion of duty renders them liable to penal action under section 112(a) of the Customs Act, 1962. (ix) As far as the role of notice No. 5, Shri Malay Sarkar is concerned, he was the person concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ............................................Admittedly, there is dereliction of the duty on the part of the Appraiser concerned. But the charge of abetment is a serious offence against the Government Servant, which requires further concrete evidences, which has not been adduced in the show cause notice. Admitting the fact that there is definite dereliction of duty on the part of Shri Rehan, Appraiser, which would have resulted in substantial loss of Government revenue had the consignment not been intercepted by DRI, it is again felt that the same falls short of the charge of abetment to fall under the purview of section 112 of the Customs Act, 1962 as proposed in the show cause notice. Nevertheless, I find him liable to penal action under section 112 of the Customs Act, 1962." 11. It is seen that the findings of the Commissioner against the CHA is one of dereliction of duty for not having facilitated proper examination of the goods. It has not been found that the CHA has failed to produce the packages marked by the Docks Appraiser for conducting the examination. It is seen that out of 875 packages declared as Christmas Lights, 70 were found to be Christmas Lights and the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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