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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 ..... 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 Christmas Lights declared, it was found to contain only 70 packages of Christmas Lights and the balance of 805 Packets were of Compact Fluorescent Lamps (CFL) which were liable to pay Anti-Dumping Duty as they were of Chinese Origin. 3.2 On follow-up, another consignment declared as Christmas Lights for which M/s. United Traders had filed bill of entry No. 108153 dated 15-10-03 was found lying uncleared. On examination, the consignment was found to contain substantial number of packages of CFL and only a few packages of the declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination 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 circumstances, he seeks setting aside the penalties on them. 7. Learned S.D.R. took us through the findings of the Commissioner. He submitted that Shri Malay Sarkar having known the importer for more than 10 years, was clearly aware of the activities of the said importer. There is no dispute about misdeclaration of the consignments with intention to evade Customs Duty. Shri Malay Sarkar and M/s. Associated Clearing Agency have clearly failed to perform their duties by not properly assisting in examination of the consignments and by not choosing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 concerned who had made the liaison between Shri Sangeet Agrawal and the Clearing Agent, M/s. Associated Clearing Agency. Although he has pleaded innocence stating that as freight forwarder his role was to start subsequent clearance of the goods, it is proved that all along he has acted at the behest of Shri Sangeet Agrawal, the mastermind behind such misdeclaration and duty evasion. So with his contention that his job would have started subsequent to the clearance of the goods as a freight forwarder, he cannot escape his responsibility for such misdeclaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 balance of 805 packages were found to be CFL. The Appraiser's statement is to the effect that he has taken 10 packages at random and the same were made available for examination and there was no discrepancy. There could be suspicion that if an appropriate random selection was followed, then all ten might not have been consignments containing Christmas Lights and there was a possibility of the consignments of CFL cropping up; but this suspicion cannot take the place of evidence or proof. The charges collected by the CHA for their service have been recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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