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TMI Blog2015 (10) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... claration of sq. ft. Area of the carpets under export, which cannot be made out by visual examination and the same have come on record only at the stage of second examination where the consignment was opened and 100% measured. Thus, I hold that the CHA is not guilty of aiding and abetting. I further hold that the CHA had the authorisation which it appears was not produced due to clerical error, but the fact has been stated and accepted by the exporter. That the penalty retained in the impugned order is set aside. - Decided in favour of Appellant. - Appeal No. C/86856/13, Application No. C/CO/91102/13 - - - Dated:- 11-5-2015 - Anil Choudhary, Member (J), J. For the Appellant : Shri Prashant Patankar, Adv For the Respondent : S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 shipping bills. The details of shortage in the given below in table. Sr. No. Shipping Bill No. Date Area declared (in Sq. Ft.) Actual area found on examination (in Sq. Ft.) 1 7679001/11.09.2009 5442.386 3179.44 2 7679003/11.09.2009 6405.764 4288.38 3 7679004/11.09.2009 6234.078 3674.593 4 7679007/11.09.2009 6288.867 3932.197 5 7679009/11.09.2009 7434.264 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said value was determined and duty drawback worked out at ₹ 5,90,418/-. According the Revenue felt that the exporter had mis-declared the value of the consignment and the same appear to be liable to confiscation and as such show-cause notice dated 24.11.2010 was issued as to why not the said consignment be confiscated and the permission granted under Section 51(L.E. Order) of the Act be not cancelled and further as to why not the goods of the declared value be not confiscated and further the present appellant-CHA penalty was proposed on him and in terms of Section 114(i) and 114(iii) and 114AA of the Customs Act, alleging aiding and abetting on their part. 4. The appellant CHA appeared and contested the show-cause notice statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of ₹ 50,000/- was imposed under Section 1114(iii) of the Act by recording finding that at no stage the CHA could produce the authorisation given by the exporter for filing the shipping bills and further there is slackness on the part of the CHA. 5. Being aggrieved the appellant had filed appeal before the Commissioner (Appeals) vide the impugned order was pleased to allow the appeal in part by reducing the penalty from ₹ 50,000/- recording finding that this being the first consignment of the exporter to be handled by the appellant CHA, the appellant should have been more careful about the quantity, value and description of the goods declared by the exporter in the invoices. Further the CHA was not having authorisation fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs 2012 (279) LT 220 (Tri-Mad) the same is in respect of penalty on teh exporter and does not support the case of the Revenue. Further the learned Counsel relies on the ruling in the case of Commissioner of Customs, Mumbai vs. M. Vasi 2003 (151) ELT 312, wherein in the case of post parcels, no significant difference in the declaration was found between the watch moments and watch modules and the value declared as per invoice. Abetment presupposes knowledge of the proposed offence and also presupposes benefit to be derived by the abettors therefrom. In the present case there being no such finding, as such the allegation of aiding and abetment does not stand. The appellant further relies on the ruling in the case of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and gone through the records, I find that under the facts and circumstances that is no lapse on the part of the CHA. The CHA acted on the instructions of the exporter and documents given. He had identified exporter before the Customs Authorities. Further the said exporters have accepted the responsibility for the mis-declaration in the sq. ft. of the carpets under export. Further no elements of aiding and abetting have come on record. Further in view of the goods subjected to examination and the L.E.O. issued, the CHA cannot be held responsible for lack of duty in mis-declaration of sq. ft. Area of the carpets under export, which cannot be made out by visual examination and the same have come on record only at the stage of second examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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