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TMI Blog2020 (2) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... e positive act or omission or abatement on the part of the Appellant so as to render him liable for penalty - Ld. Commissioner (Appeals) has observed that while the Show Cause Notice seeks to impose penalty for connivance, the Adjudicating Authority has imposed penalty for abatement. Accepting the documents from Shri Sujan Sharma and receiving payment in cash do not in themselves constitute an offence punishable under Customs Act, 1962. No case has been made by the department that there was some positive act or abetment of the smuggling by the appellant. In fact as a Customs Broker, his role has not even begun as the said goods have been apprehended well before they reached the port. There is no whisper leave alone evidence that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred an appeal to CESTAT and this Bench while setting aside the Order of the Commissioner (appeals), reduced the Penalty imposed on the Appellant by the Original Authority from ₹ 30, 00,000 to 15, 00,000. The appellant approached the Hon ble High Court of Kolkata who vide Order dated 26/06/2009, in CUSTA 67 of 2018, have remanded the matter back to this Bench while observing that the finding paragraph 5 of the Impugned Order is not sufficient for imposing of penalty of ₹ 15,00,000/- on the appellant. 4. The Ld. Counsel for the appellant submits that the allegation leveled against them is not substantiated; whereas the seizure was affected in Bihar, it was alleged that the Appellant, a CHA, seating in Kolkata abetted the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether in the facts and circumstances of the case there is sufficient reasoning has been given by this bench while imposing penalty of ₹ 15, 00,000 on the appellant. 7. On a re-appreciation of the facts of the case, we find that the appellant is a CHA; it is alleged that Shri Sujan Sharma, a habitual offender, used fake address for attempted illegal export of Red Sanders and has engaged the services of appellant; the services of the appellant as a CHA were yet to start. It is seen that the Export executive of the Appellant has accepted that they normally do not receive payment in cash from their customers but in the case of Shri Sujan Sharma, they have accepted; they do not have the exporter but got the authorization papers from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wordings of the Section, it is apparent that there should be positive act or omission or abatement on the part of the Appellant so as to render him liable for penalty. We find that Ld. Commissioner (Appeals) has observed that while the Show Cause Notice seeks to impose penalty for connivance, the Adjudicating Authority has imposed penalty for abatement. 9. We find that though the Show Cause Notice and the Order-in-Original speak of acceptance of documents by the Appellant Company from Shri Sujan Sharma, no evidence of Connivance has been brought forth. We find that in the Grounds of Appeal, the Department submits that he has violated the Provisions of Regulation 11 (a) of Customs Brokers Licensing Regulation 2013. However, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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