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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 ..... nal. Shri Ram Lal Sharma was 'G' Card holder of M/s. S N International. The goods were processed and export documents were filed by one M/s. Antique Air and Sea Logistics who were clearing and freight forwarders and Shri Rakesh Bhakshi was proprietor of said firm. Shri Roshan Lal Sharma is 'G' Card holder of M/s. Exim Cargo services, CHA firm. 3. Investigation conducted in respect of exports made by M/s. AKJ Enterprises revealed that there was mis-declaration in respect of number of quantity of goods as also as regards the value of the same. Number of statements were recorded during the course of investigation and proceedings were initiated against M/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. In fact we find that the Commissioner in para 55 of his order has observed that penalties are being imposed on Shri Rakesh Bhakshi as he has failed to take due care of confidentiality of the password known to him for filing shipping bills as also to verify the antecedents of Shri Dinesh Singh before appointing him in his 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue, the action should have been taken under the Customs House License Regulation Act and the said factor cannot be taken into consideration for imposing penalties in terms of Customs Act on account of aiding and abetting the exporters, in the absence of any evidence to that effect. We accordingly, set aside the penalties imposed upon all the appellants and allow their appeals with consequential relief to the appellants. (Pronounced in the open court) (Archana Wadhwa) Member (J) (Manmohan Singh) Member (T) 9. Role of the appellants has been found by learned adjudicating authority is para 52 of adjudication order holding them guilty. He has already confistated the goods,imposing redemption fine of Rs. 2 lakhs in Order-in-Original dated 29.11.2007 which was considered in para 2 of the order. Drawback claim of Rs. 1,64,974 has already been denied. Penalty of Rs. 2 lakh has been imposed on M/s AKJ Enterprises. Further amount of Rs. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authorities in respect of the same would be outside the purview of the appeals being disposed of by the Tribunal. 12. Further I note that the order allowing the appeals were pronounced in the open Court on 8.5.2013 and no such order relating to CHA Regulations proceeding was announced. Subsequent recording of such order amounts to enlargening the scope of pronounced order, which is not permissible in law. 13. As such, I am of the view that said directions are not required to be issued to the lower authorities. I hold accordingly. (Archana Wadhwa) Member(J) Difference of Opinion 14. Whether 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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