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TMI Blog2021 (12) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... times of the value of the goods mis-declared. The first respondent Tribunal is empowered to enhance the penalty imposed, if the penalty imposed is not adequate. Section 117 of the Customs Act is a residuary provision for imposing penalty for contravention. When penalty is prescribed elsewhere in the Act, the maximum cap of Rs.One Lakh fixed under Section 117 is not applicable. The submission of the Appellant that penalty of ₹ 5,00,000/- is excessive and beyond power is ex facie untenable. Further, the provisions under the Regulations to punish a person for violation and contravention of the Regulations is in addition to the penal provisions prescribed under the parent act, namely, the Customs Act. Therefore, it is incorrect to say that the Appellant is liable only under the Regulations for any violation and contravention and if the action under the Regulations is not sufficient for the grave offence, there is no legal impediment to proceed against the employee / appellant of the Customs House Agent under the Customs Act besides action under the Regulations. There is no mala fide or infirmity in the order of imposition penalty at ₹ 5,00,000/- - appeal dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainer was stuffed with red sanders mis-declaring it as Coco Peat at the instance of one J.Francis Kumar, Marketing Executive of M/s.Sai Freight Private Limited, Tuticorin. The further investigation revealed that the shipping bill prepared by him on obtaining the signature of Customs House Agent [CHA] through Shri G.Ravi of M/s.Vector Freight Forwarders. 4. According to the Appellant, a show cause notice was issued to him, seeking explanation as to why penalty under Section 114 (i) and 117 of the Customs Act, 1962 should not be imposed on him, for which, he had given a detailed reply, denying the allegation. After enquiry, penalty of ₹ 10,00,000/- was imposed on the appellant under Section 114(i) of the Customs Act, 1962, vide order dated 30.08.2010. Aggrieved by the order passed by the Additional Commissioner, Custom House, Tuticorin, the appellant herein preferred statutory appeal before the Commissioner, Customs and Central Excise (Appeals), Tiruchirappalli, in Appeal No. 25 of 2011. In the appeal, the penalty of ₹ 10,00,000/- was reduced to ₹ 2,00,000/-, by order dated 22.03.2011. 5. Aggrieved by the said order dated 22.03.2011, the appellant herein prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant to impose penalty under Section 114(i) of the Customs Act, 1962. Therefore, the CESTAT is not correct in holding that the appellant is liable for penalty under Section 114(i) of the Customs Act, 1962. 8.The learned counsel appearing for the appellant would submit that time and again the Courts have held that an employee of the Customs House Agent cannot be held liable for mis-declaration or misuse of the licence, if any third party without his knowledge, exports prohibited goods by mis-declaration. Further, he would contend that in the alleged shipping bill Annexure-A used for smuggling the Red Sander is a photocopy of the blank Annexure-A, signed by the Customs House Agent and the appellant has never indulged in the transaction and cannot be accused of violating Regulation 13(a) and (b) of the Customs House Agents Licensing Regulations, 2004 [CHALR]. The Customs Department, having chosen to issue show cause notice, cannot proceed under Sections 114(i) and 117 of the Customs Act. 9. Further, it is contended that as an employee of the Customs House Agent, his role is limited and for the declaration and mis-declaration of the goods, he cannot be liable for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l importer and the goods to be imported, is a serious issue. Misuse of CHA licence or reckless and careless lending of the same, the unscrupulous person for facilitating smuggling activities should be viewed seriously and held that imposition of penalty by invoking the provisions of the Customs Act is not only justifiable but also acceptable. 14. In the present case, there was a stealthy export of Red Sanders to Malaysia in a Container bearing No.VMLU 3200873 covered under Shipping Bill No. 1955099, dated 09.07.2008 along with Annexure-A signed by the appellant herein. It is admitted by the employer / Customs House Agent, of the appellant that the blank signed Annexure-A was handed over to the Appellant working at Tuticorin. The very admission itself is sufficient under Section 108 of the Customs Act to hold that the appellant was reckless and negligent in using the Customs House Agent Licence of his Employer. The declaration of goods found in the shipping bill hold sway by Annexure-A. In a scheme of conspiracy, either the Customs House Agent or employee cannot escape from the liability pleading ignorance of the transaction. Both the provisions of the Customs House Agents Licens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as transported based on the Annexure-A, prepared by the Appellant herein, containing the signature of the employer of the appellant. Therefore, mis-declaration of goods and attempt to export such goods is punishable under Section 114 of the Customs Act. A person, who is a party to the mis-declaration, is liable to pay penalty not exceeding three times of the value of the goods mis-declared. The first respondent Tribunal is empowered to enhance the penalty imposed, if the penalty imposed is not adequate. Section 117 of the Customs Act is a residuary provision for imposing penalty for contravention. When penalty is prescribed elsewhere in the Act, the maximum cap of Rs.One Lakh fixed under Section 117 is not applicable. Therefore, the submission of the Appellant that penalty of ₹ 5,00,000/- is excessive and beyond power is ex facie untenable. Further, the provisions under the Regulations to punish a person for violation and contravention of the Regulations is in addition to the penal provisions prescribed under the parent act, namely, the Customs Act. Therefore, it is incorrect to say that the Appellant is liable only under the Regulations for any violation and contravention an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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