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TMI Blog2015 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA and the freight forwarding agency are handling the particular export and are entering the relevant data on the documents to be presented for the export purpose, they are relying upon the declarations made by the exporters. If the exporter has made wrong declaration, the same are bound to be reflected in the export documents. As such, merely on that basis, it cannot be said that all the persons who only have prepared the export documents have mis-declared the same so as to invite the penal provisions. To invite penalty, it has to be shown that said persons have done so with full knowledge and with a malafide intention and as such has abetted the exporters. There is no dispute about the description of the goods and only allegation is are as regards quantity and value of the same. CHA and the freight forwarders are not expected to verify the correctness of the value declared by the exporters. It is seen that even Customs officer finally accepted the said declaration and allowed the clearance and it was only subsequently on investigation by SIIB that mis-declaration as regards the value of exported goods came to surface. As such, in the absence of any evidence indicating any di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. AKJ Enterprises for denial of claim of draw back, Notice also proposed imposition of penalty on various noticees including the present three noticees. The said show cause notice resulted into culmination of impugned order passed by Commissioner vide which he has confirmed the allegation of over-valuation of the export goods as also of mis-declaration against M/s. AKJ Enterprises as also imposed penalty on various persons including the present appellants. 4. It is coming on record that M/s. AKJ Enterprises have not challenged the impugned order of Commissioner. There are also no other appellants. Hence, we are restricting our findings to the appeals in the present appellants only. 5. On going through the entire order of Commissioner, we find that there is virtually no evidence on record indicating that said three persons were aware of the fraudulent export by M/s. AKJ Enterprises and as such, abetted them for doing so. Learned DR has drawn our attention to para 50 of the orders where Commissioner has held that Shri Ram Lal Sharma, 'G' Card holder of M/s S N International, Shri Rakesh Bhakshi, proprietor of M/s. Antique Air and Sea Logistics and Shri Anand K Jha, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is firm. Further Shri Ram Lal Sharma divulged the same password not only to Shri Rakesh Bhakshi but also to Shri Dinesh Singh. He has further penalized Shri Roshan Sharma on the ground that he did not bother to verify the antecedents of Shri Dinesh Singh before getting him appointed in the said firm of Shri Rakesh Bhakshi. At the end of the said paragraph he has observed that he proposed to impose penalties on all the six noticees even in the absence of mens-rea. 7. As such, it is seen that the penalties stand imposed on all the appellants not on the ground that they were aware of the fraudulent exports of the exporter but on the technical ground that one Shri Dinesh Singh who was the front person and committed all the offences, was appointed by Shri Rakesh Bhakshi without verifying his antecedents. Shri Roshan Sharma was penalized on the sole ground that he recommended the appointment of Shri Dinesh Singh. The adjudicating authority has himself observed that there is no mens-rea on the part of said appellants. The imposition of penalty itself, being penal in nature, entails in its ambit the fact of mens rea and is required to be imposed on the persons with malafide intention. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has already confistated the goods,imposing redemption fine of ₹ 2 lakhs in Order-in-Original dated 29.11.2007 which was considered in para 2 of the order. Drawback claim of ₹ 1,64,974 has already been denied. Penalty of ₹ 2 lakh has been imposed on M/s AKJ Enterprises. Further amount of ₹ 10,387.50 lying in the Drawback Account of the party in Punjab National Bank has also been appropriated. Looking into the consequences of adjudication and observing that revenue interests only been technically jeopardized without revenue suffering monetary loss and considering that penalties on appellant being on higher sides, I do not differ with the decision taken for dropping penalties against the appellants. But I order that appellants should be appropriately dealt under Customs House Agents Regulations to curb the mischief and impose the appropriate penalty to prevent the re occurrence of mischievous tendencies. (Manmohan Singh) Member (T) Per: Archana Wadhwa: 10. As I don't agree with the observations made by learned Member (Technical) in his separately recorded order, I feel compelled to record my own view on the same. It is seen that appeals were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last lines in para 9 of the order recorded by Member (Technical) starting from But I order that.............mischievous tendencies are required to be a part of the order of the Tribunal as held by Member (Technical) or the same are required to be issued as held by Member (Judicial). (Pronounced in the open court on 24.01.2014) (Archana Wadhwa) Member (J) (Manmohan Singh) Member (T) Date of Hearing: 12.12.2014 Date of Decision: 12.12.2014 Per: Rakesh Kumar: 15. Heard both the sides in respect of the point of dispute. The appellants are the G Card holder of Customs House Agents and Forwarding Agents. The appeals filed by them were against imposition of penalties on them under Section 114 and 117 of the Customs Act, 1962. While Member (Judicial) vide her order dated 09/05/13 set aside the penalties imposed on all the appellants and allowed their appeals with consequential relief, Member (Technical) in his separate order dated 05/08/13 recorded by him, while agreeing with the decision of Member (Judicial) with regard to setting aside of the penalty, expressed the view that the appellant should be appropriately dealt under the Customs House Agents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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