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TMI Blog2022 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... torate of Revenue Intelligence, Chennai Zonal Unit gathered specific intelligence that attempts were made to smuggle red sanders from Chennai Port in consignment covered under Shipping Bill dated 2.5.2018 in the name of M/s. Universal Concrete Technology. The said bill was filed by the Customs Broker, the appellant herein. Pursuant to the intelligence on 9.5.2018, the container was off loaded from vessel for verification. The officers found the container to be stuffed with red colour wooden logs which were red sanders. During the course of investigation, it was revealed that an unknown person introduced himself as Shri Rajesh to Shri Mahimai David and impersonated himself as Shri Sampath Kumar, Proprietor of M/s. Universal Concrete Technolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order to the adjudicating authority to reconsider the issue of non-imposition of penalties under sec. 114 and 114AA on the appellant. Aggrieved by such direction of remand, the appellant is before the Tribunal. 5. The learned counsel Shri Derrick Sam appeared and argued for the appellant. He adverted to para 49 of Order in Original which reads as under:- "I find that the contention of the Customs Broker in their reply to the show cause notice that they had verified the IEC and obtained authorisation from the exporter before taking up the filing of first shipping bill in the name of M/s.Universal Concrete Technology was true as they had admitted that they have no contact with the exporter and the Shri I.Mahimai David was doing all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In such circumstances , I hold that the Customs Broker has not done any act of omission or commission which made the goods liable for confiscation. However, I hold them responsible for failure to discharge the functions of a Customs Broker as provided in the Customs Brokers Licensing Regulations, 2013. I observe that the Hon'ble Tribunal in the case of Commissioner of Customs (Exports) Vs. I Sahaya Edin Prabu - 2015 (320) ELT 264 (Mad.) held that for failure to discharge as a Customs House Agent penalties are provided in the Customs House Agents Licensing Regulations and imposition of penalty under Sec. 114 of the Customs Act, 1962 is not warranted. The said decision of the Hon'ble CESTAT was also upheld by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and presumptions only. 7. The learned counsel submitted that the allegations if at all would come under the Customs Broker Regulations only for which penalty cannot be imposed under sec. 114 / 144AA of the Customs Act, 1962. The appellant had filed shipping bill on behalf of M/s. Universal Concrete Technology, Coimbatore. The required documents were received from Shri Mahimai David which is accepted and admitted by the said person. In para 31 of the Show Cause Notice, the allegation against the appellant is as to why penalty should not be imposed for contravention of Regulations 11(a), (d) and (n) of CBLR, 2013. Although the contravention is violation of CBLR, 2013, the proposal is to impose penalty under sec. 114 and 114AA of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r confiscation. Further, in the Show Cause Notice, there is no allegation that the appellant had done any act facilitating the attempt to smuggle red sanders. The statement of Shri Mahimai David shows that he had collected the documents from the exporter and the same were submitted to the appellant to file the shipping bill. 13. Para 31 of the Show Cause Notice shows the summary of allegations. The allegation against the appellant herein in clause (x) and (aa) of the said para reads as under:- "(x) M/s. Hera Shipping Solutions Pvt. Ltd. Customs Broker by contravening the Regulations 11(a), 11(d) and 11(n) of Customs Brokers Licensing Regulations 2013 had abetted this smuggling of Red Sanders logs by attending Customs clearance work of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. The appellant had verified the IE Code and found that it was valid. Further, the appellant had submitted KYC form and necessary authorization obtained from the exporter. In fact, the appellant had obtained the authorization, KYC details before filing the shipping bill. 15. Shri Mahimai David has stated that the appellants had no knowledge about the incident. In order to attract section 114 of the Act, the department has to establish some act or omission by which the appellant has abetted the offence. Section 107 of IPC defines 'abetment'. As per the third limb of this definition, if a person 'intentionally aids, by any act or illegal omission, the doing of that thing', it would be abetment of an offence. Mens rea is a main ingredi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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