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TMI Blog2023 (8) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... he Custom House Agents Licensing Regulations (CHALR). For contravention of the CHALR, the licence of the CHA may be suspended or revoked apart from forfeiture of the security deposit. However, it does not mean that penalty is not imposable under Section 114 of the Customs Act where the CHA has abetted or facilitated an illegal export or import contravening various provisions of the Customs Act, 1962. The Hon ble High Court of Judicature at Madras in the case of M/S. SANCO TRANS LTD VERSUS THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CUSTOMS (SEAPORT-EXPORT) [ 2017 (4) TMI 583 - MADRAS HIGH COURT ] has held that the custodian is responsible for all aspects of a transaction and provisions of Section 114 of the Customs Act, 1962 will stand automatically attracted in the event of violations by way of omission or commission of acts stated therein. The appellant has acted or omitted to do an act, resulting in rendering the exported goods liable for confiscation, thus attracting the provisions of Section 114 (i) of the Customs Act, 1962. So, penalty is imposable for his acts of omission or commission, may be deliberate or negligent. His conduct aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade (DGFT) as per paragraph 2.1 of the Foreign Trade Policy for 2009-14 formulated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, export of Red Sanders wood in any form is prohibited. In terms of Section 2 (33) of the Customs Act, 1962, prohibited goods means any goods, the import or export of which is subject to any prohibition under this Act or under any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be exported have been complied with. According to Section 113(d) of the Customs Act, 1962, any goods attempted to be exported or brought within the limits of any Customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act, or any other law for the time being in force, shall be liable to confiscation. Further, as per Section 2(39) of the Customs Act, 1962, smuggling in relation to any goods means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Customs Act, 1962. 2.3 M/s. Artisan s Welfare Society, Villupuram have unsuccessfully attempte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any offence and that the Show Cause Notice or the orders of the lower authorities had not disclosed any contumacious conduct warranting imposition of penalty. He submitted that there was a failure to take into consideration the decision rendered in the case of Sri Ram v. The State of Uttar Pradesh [AIR 1975 SC 175] which reads: in order to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. 4.2 He submitted that there is no evidence that the appellant had acted in deliberate defiance of law or conscious disregard of their obligations and so, no penalty could be imposed; that penal provisions are required to be strictly construed and it is the well-settled position of law that penal proceedings are quasi-criminal proceedings and penalty cannot be imposed without mens rea, and also that there is no evidence shown in the Order-in-Original to prove any culpability of the appellant in the above export. 4.3 In support of his contentions, the Ld. Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without verifying its credentials or the goods being exported. 5.2 He has supported the findings in the orders of the lower authorities and stated that by his acts of omission and commission rendering these goods liable for confiscation, penalty is imposable on the appellant under the provisions of Section 114 of the Customs Act, 1962. 5.3 He prayed for dismissal of the appeal. 6. We have heard both sides and considered the submissions made. 7. Shri V. Thiruvalagan, Proprietor of M/s. Shalom Forwarders, Tuticorin, who filed the shipping bill and packing list after receipt of documents from M/s. Desire Global Logistics and not from the exporter, was penalized by imposition of penalty of Rs.2,00,000/- by the original adjudicating authority, which was reduced by the lower appellate authority to Rs.1,00,000/-.The allegation against the appellant is that by his acts of omission and commission, he has abetted the illegal export of Red Sanders by M/s. Artisan s Welfare Society, Villupuram, rendering them liable for confiscation, thus attracting the provisions of Section 114 (i) of the Customs Act, which read as under: - Section 114. Penalty for attempt to export goods imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2 It is on record that the appellant filed the impugned shipping bill without knowing and verifying the credentials of the exporter or the consignment while obtaining documents from M/s. Desire Global Logistics and has thus facilitated the unsuccessful attempted export of Red Sanders wood in the form of pillar tops / wooden pillars. As explained above, regarding the attempt here, the attempt, though unsuccessful, is complete. The words used in Section 114 of the Customs Act are in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 113, or abets the doing or omission of such an act , which has a wide amplitude. 9.3 The appellant, by accepting documents from a third party without verifying the genuineness of the exporter or the goods being exported, has facilitated the unsuccessful attempt of export of prohibited goods. Whether the above acts or omissions have been done intentionally or otherwise would not materially alter his position as an abettor in rendering these goods liable for confiscation. It is also significant to note that the CHA was also involved in filing documents involving exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods liable to confiscation under Section 113, or abets the doing or omission of such an act, shall be liable . It is seen that the Section has two components. The first component deals with commission of an act or omission to do any act which would render the goods liable to confiscation. The second component is abetting the omission or commission. The first part does not depend on mens rea on the part of the person who omitted to do any act. Therefore mere contravention of the provisions of the Act and Regulations justifies the imposition of penalty under Section 114 of the Act. The Apex Court in the case of Raghuveer Metal Industries Ltd. v. Commissioner - 2012 (284) E.L.T. A93 (S.C.) was dealing with the case where penalty was leviable for violation of Rules relating to compounded levy framed under Section 3A of the Central Excise Act. It was held that mens rea is not a necessary ingredient and there is no scope for any discretion in imposition of any penalty . In the present case mens rea is not an ingredient as explained above. Therefore penalty is imposable. 12.2 The Hon ble High Court of Judicature at Madras in the case of M/s. Sanco Trans Ltd. v. CESTAT, Chenna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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