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TMI Blog2019 (12) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and that the appellant had not informed the Customs Authorities about the non-possessing of licence by the importer for importing the R-22 gas while processing the amended Bill-of-Entry. It is also a fact borne on record contrary to the above findings that the cargo was under detention from 01.04.2016 onwards and hence, there was nothing that the appellant being the Customs Broker was able to present. These allegations per se are not sufficient to fasten with the penalty of the nature impugned. The appellant has performed its duties as per the CBLR in terms of the licence granted to it. A perusal of the impugned Order-in-Appeal makes it evident that the appellant did advise the importer as to the requirement of import licence, which appears to be a sufficient compliance insofar as Regulation 11 (d) is concerned because, getting the required licence was, in any case, the duty of the importer. Further, from a bare reading of Section 114AA it is evident that the said Section could be invoked only on the establishment of the fact that the declaration, statement or document made/submitted in transaction of any business for the purposes of the act is false or incorrect and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dan Kumar appeared before the SIIB authorities, who were let off by the investigating officers without even recording their statements. Ld. Advocate would also submit that the Revenue authorities extended the period of six months under Section 110 (2) of the Customs Act, 1962 for further investigation, but however, there were absolutely no allegations against the appellant; that the Revenue has not established the mens rea as far as the appellants are concerned to bring home the guilt for levying penalty and that the authorities did not conduct any investigation, much less a fair investigation to ascertain the whereabouts of authorized person of the importer namely, Shri. Kundan Kumar who had given the Rajasthan address, with the help of the local Customs authorities there. 2.3 He relied on the decision of the Hon ble High Court of Judicature at Madras in the case of Commissioner of Cus. (Exports), Chennai Vs. I. Sahaya Edin Prabhu reported in 2015 (320) E.L.T. 264 (Mad.) 3. Per contra, Shri. L. Nandakumar, Ld. Departmental Representative appearing for the Revenue, while supporting the findings of the lower authorities also contended that, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined in the Customs Act. 7.1 In the Order-in-Original, the Adjudicating Authority has inter alia confirmed the allegations with regard to non-presentation of the imported goods for examination and that the appellant had not informed the Customs Authorities about the non-possessing of licence by the importer for importing the R-22 gas while processing the amended Bill-of-Entry. It is also a fact borne on record contrary to the above findings that the cargo was under detention from 01.04.2016 onwards and hence, there was nothing that the appellant being the Customs Broker was able to present. These allegations in my view, per se are not sufficient to fasten with the penalty of the nature impugned. 7.2 It is found that the findings recorded by the Adjudicating Authority and the Commissioner (Appeals) are more of less reiteration of the allegations contained in the Show Cause Notice. Further, it is not even established that the appellant had handled the work of clearance with any mala fide motive or any motive to make abnormal gain and nor do I find that there is any allegation as to the appellant having made any abnormal profit in connivance. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess there are any factors which ought to have alerted it to make further inquiry. There is nothing in the Regulations nor in the Customs Act which can cast such a higher responsibility as are sought to be urged by the Revenue. In other words, in the absence of any indication that the CHA concerned was complicit in the facts of a particular case, it cannot ordinarily be held liable. 8. As far as the decision in H.B. Cargo Services (supra) is concerned, the facts reflected in paras 5 and 9 facially show that the CHA played an active role. It is in these circumstances that in para 15 (which was relied upon by the Revenue), the Court made the following observations : 15. While the punishment imposed on the CHA has to be commensurate with the gravity of the proved acts of misconduct as, on revocation of his license, the CHA would suffer, it must not be lost sight of that, though it is the right of a citizen to carry on his business or profession, it is subject to reasonable restrictions and conditions which, in the present case, are stipulated under the CHALR [Worldwide Cargo Movers - 2010 (253) E.L.T. 190]. As noted hereinabove, blank shipping bills w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus., Kandla 2008 (222) E.L.T. 137 (Tri. Ahmd.); (iv) Parekh Sons Vs. Commr. of Cus. (P), Mumbai 2002 (150) E.L.T. 1274 (Tri. Mum.). to name a few. 8.1 Further, from a bare reading of Section 114AA it is evident that the said Section could be invoked only on the establishment of the fact that the declaration, statement or document made/submitted in transaction of any business for the purposes of the act is false or incorrect and therefore, without establishing that such declaration, statement or document was false or incorrect in any material particular, this Section cannot be invoked. 8.2.1 In this regard, it is useful to refer to a recent decision of the Mumbai Bench of the Tribunal in the case of M/s. Sameer Santosh Kumar Jaiswal Vs. Commr. of Cus. (Import-II), Mumbai reported in 2018 (362) E.L.T. 348 (Tri. Mum.) wherein, it has been inter alia held that from the reading of the above Section 114AA, it is observed that if the person knowingly makes the false declaration or signs any such document then only he will be liable to penalty under Section 114AA. In the present case, there is no case t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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