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TMI Blog2021 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... r, whatever documents have been supplied to the appellant by the importer, the appellant has filed bills of entry for clearance. On the basis of those documents merely being the appellant an experienced person it cannot be alleged that the appellant was having malafide intentions for clearance of the said goods by mis-declaring the same. The Revenue has failed to established against the appellant that he has omitted to do any act which act or omission would render the such goods liable to confiscation. The Revenue has further failed to establish the fact that the appellant abats the doing omission of the act which would render the goods liable for confiscation. There is no allegation in the show cause notice in respect of the test certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me in nature, therefore, a case has been booked against the importer for mis-declaration of the goods to evade payment of duty on the said goods. A show cause notice was also issued to the appellant alleging that the appellant being an experienced customs broker was expected to understand the difference between prime material and secondary/defective material. Therefore, it was alleged that the appellant has made a false declaration in respect of the said consignments. The matter was adjudicated and penalty of ₹ 50,000/- was imposed on the appellant under Section 112 readwith Section 114AA of the Customs Act, 1962. Aggrieved by the said order, the appellant is before me. 3. The Ld. Counsel appearing on behalf of the appellant submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther relied on the decision of the Hon ble Delhi High Court in the case of Commissioner of Customs (Import) vs. Trinetra Impex Pvt. Ltd. 2020 (372) ELT 332 (Del.). He also relied on the decision of this Tribunal in the case of P. S. Bedi Company vs. Commissioner of Customs, New Delhi 2001 (133) ELT 86 (Tri. Del.). He further submits that reliance made by the Revenue in the case of Kwick Handling Services P. Ltd. vs. Jt. Sec. Dept. Of Revenue, Ministry of Finance 2009 (234) ELT (Mad.), is not relevant as it is clearly mentioned that it is a case of export of goods and the goods in question were examined by the CHA and packed the same before filing the shipping bill which means that before filing the shipping bill, the CHA was having the k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is that the appellant being customs broker had filed 4 bills of entry for clearance of consignment of cold rolled coil (non-alloy) and cold rolled sheets (non-alloy) of prime nature which were found on examination as secondary and defective nature and the appellant being an experienced customs broker was expected to understand the difference between prime material and secondary defective material. Therefore, he has made a false declaration in respect of the said import consignment. 7. Admittedly, no where it has been placed on record that the appellant was having prior knowledge of defective/secondary material. In fact, in the invoices, high-seas agreements, test certificates, it is mentioned that the material is of prime nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is imposable on the appellant. 9. Further, in the case of P. S. Bedi Company (supra) this Tribunal again has observed as under:- 5. Considering the submissions, I not that, before proceeding to impose a penalty on the CHA under Section 112 (a) of the Customs Act, it is incumbent on the Departmental authorities to record a finding in the first instance that some commission or omission of the CHA had rendered the goods confiscable. Such a finding is not forthcoming in the order of the Deputy Commissioner or that of the Commissioner (Appeals). In the absence of such a finding, penalty cannot be imposed under Section 112 (a) of the Act. The adjudicating authority has not even mentioned the provision of law under which the penalty was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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