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TMI Blog2017 (1) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... i C J Mathew, Member (Technical) Ms. Pooja Reddy, Advocate for the appellant Shri M.K. Sarangi, Dy. Commissioner (AR) for the respondent ORDER M/s Skylark Travels Pvt Ltd seeks the quashing of penalty of ₹ 5,00,000/- imposed under section 114 (i) of Customs Act, 1962 upheld by order-in-appeal no. 185-189 (Adjudication Export)/2012 (JNCH)/EXP-34-38 dated 18th April 2012 of Commissioner of Customs (Appeals), JNCH. Penalty was imposed for alleged involvement in attempt to smuggle out 6.9 metric tons of red sanders in containers entered for export 'lock washers' in the shipping bills filed through the appellant in its capacity as customs house agent licenced under Customs House Agent Regulations, 2004. The other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. There is no dispute that the containers for which shipping bill was filed by the agent on the recommendation of Flavian Walter D'Souza did contain red sanders which is prohibited for export from India in pursuance of Convention on International Trade in Endangered Species (CITES) and was declared as lock washers ; there has been no allegation that the consignment was substituted between the filing of the shipping bill and the entry into the export area. The role of a 'customs house agent' in relation to export commences with the filing of the shipping bill and is completed when the consignment is handed over to the agent of the carrier. In the absence of an allegation, or a finding, that the substitution occurred during this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proper to bring such breach within the ambit of another statutory provision which is intended to penalise smuggling of goods, or attempt thereof, unless that latter provision specifically intends such coverage. There can be no doubt that a customs house agent can be penalised under section 114 of Customs Act, 1962 but that penalty must follow a finding that an act of omission or commission on the part of customs house agent rendered the goods liable for confiscation. To link up carriage of contraband with failure to ascertain the identity of exporter or obtain the authorization is to infer that such ascertainment or obtaining would have prevented the attempt to smuggle. Nor is it credible to infer that failure to do so has encouraged the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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