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TMI Blog2019 (8) TMI 1574X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of the import consignment from the port of importation and once the consignment has been handed over to the importer its beyond our imagination that custom house agent can keep track of the import consignment as to whether it is being installed by the importer at his factory premises or being diverted/sold to some other person. There are no iota of an evidence to establish any connivance or abetment on the part of the appellant with the importer in diversion of duty free imported capital goods. Charge of over-utilization of the EPCG licence whereunder some consignment has been cleared without payment of customs duty - HELD THAT:- Once EPCG licence is registered with particular port of importation the value of the EPCG licence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a CHA/Customs Broker (CB) firm at Raipur and appellant (II) is its Director. The appellants have undertaken clearing work of capital goods for M/s. Kasare Vanya Silk Mill Pvt. Ltd., Raipur under Export Promotion Capital Goods Scheme (EPCG Scheme). The capital goods imported by M/s. Kasare Vanya Silk Mill Pvt. Ltd. were cleared at the zero rate as per the provision of Notification No. 102/2009-Customs, dated 11-9-2009. A show cause notice dated 28 February 2017 have been issued to M/s. Kasare Vanya Silk Mill Pvt. Ltd., where the appellants are also co-noticee for penalty under Section 112B of the Customs Act, 1962. Primarily there are two allegations against the appellants (i) that the CHA firm M/s. Bharati Freight Forwarders Pvt. Ltd. h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on noticee No. (I) and (II) individually as per the provision of Section 112(b)(ii) of the Customs Act, 1962. The appellants are before us against the above-mentioned order-in-original. The Learned Advocate appearing on behalf of the appellants have contested that they have undertaken the task of clearance of the import consignments on the basis of the documents provided by the importer to them. The availability of the value under the EPCG licence was also provided by the importer and it is a matter of record that EPCG licence is first to be registered with the particular custom house and the value of the import consignment is debited from the licence value of the EPCG at the time of the import of capital goods. It is also a matter of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal, we find that the Adjudicating Authority has imposed penalty under Section 112b(ii) on the appellants primary following on two grounds : (a) that they were required to keep an account of duty saved under EPCG licence and they could have stopped the misuse of the EPCG authorization letter which led to over-utilization of the EPCG value; (b) that they have abetted the diversion of machinery imported under EPCG licence at zero rate of duty without fulfilment of the export obligation. From the record of the appeal, we find that the Department has not adduced any concrete evidence to prove that the appellants have helped the importer namely M/s. Kasare Vanya Silk Mill Pvt. Ltd. in the diversion of duty free imported capital goods withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cleared up to the value provided therein and only they have the machinery to stop misuse of value provided into EPCG licence. We find that CHA cannot be made responsible for such misuse of the EPCG licence unless and until some concrete evidence is produced which establishes a mala fide on the part of the customs house agent and misuse of EPCG licence. We find that no such evidence has been adduced by the Department which clearly involves the appellants in misuse of EPCG licences. 6. In view of above discussion, we hold that charges levelled against the appellants and on the basis of which penalty under Section 112b(ii) under the Customs Act, 1962 has been imposed are not proved by the Department and, therefore, we set aside the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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