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TMI Blog2024 (1) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... r an express omission or commission, leading to the fraud on the part of the appellant. There is nothing in the findings of the learned Commissioner to assert a positive role or to impute abetment on the part of the appellant in the attempt to smuggle out Red Sanders. Thus, in view of anything specific on the part of the appellant being brought out on record, it would be completely inappropriate to subject the appellant to penal provisions under Section 114(i). The fact that in so far as this Custom Brokerage firm was concerned, Tribunal has categorically held that though the appellant was found wanting in discharge of his obligations under Regulation 13 (a), (b) and (o) of CBLR, 2004, they cannot be penalized in perpetuity and though had accordingly upheld the order of the learned Adjudicating Authority issued under Regulation 20(1) of the CBLR, it had however restored the same. The order passed by the adjudicating authority is based largely on conjectures and assumptions. It is also noted that in respect of Nepal origin exports to third countries transiting through India, the Indian CHA s function is limited to processing the Border endorsed CTD at Customs House, Kolkata, taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice they were also issued a show cause notice under the provisions of the Custom Brokers Licensing Regulations, 2004 which has since been adjudicated upon and whereby in appeal the Custom Brokers license has since been restored and they were allowed to function as a Customs Broker on a regular basis. 3. We note that the Tribunal vide its order referred supra observed as under: 5.1. In the above case CHA was out of business for 8 years but Hon ble Court while deciding clearly observed that trust between the CHA and the Customs authorities has to be viewed seriously. It was also held that punishment has to be proportionate to the nature and extent of violation. Based on the existing facts in the present appeal before us we hold that appellant was found wanting in discharging his obligations under Regulation 13(a), (b) and (o) of the CHALR, 2004 and accordingly orders passed by the adjudicating authority under Regulation 20(1) of CHALR, 2004 are upheld. 6. However, looking to the fact that appellant had no knowledge of the contraband nature of the goods substituted in the containers and in view of the ratio of the relied upon case law, punishment for a lifetime cannot be imposed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of Section 114A, to a penalty not exceeding ten per cent. of the duty sought to be evaded or five thousand rupees, whichever is higher: PROVIDED that where such duty as determined under sub- section (8) of Section 28 and the interest payable thereon under Section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per cent. of the penalty so determined; (iii) in the case of any other goods, to a penalty not exceeding the value of the goods, as declared by the exporter or the value as determined under this Act, whichever is the greater. 6. In view of the fact that the action initiated against the Customs Broker for violation of his functions and non-fulfilment of responsibilities as a Customs Broker, a show cause notice was issued to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrespondences, while he did not verify the container seals with the CTD documents which he processed at Customs House, Kolkata. Thus his acts and omissions, appear to have facilitated the attempted smuggling of Red Sanders. (c) Further, as regards the role of the appellant, para 32(vi) of the show cause notice has the following to state: vi) Shri Chandan Chatterjee, partner of M/s. Shuvam Enterprises (CHA firm) for his material gain assisted the said racket in the attempt of illicit export of Red Sanders in the name of M/s. Osia Enterprise of Nepal and have thus failed to discharge his responsibilities properly/legally in dealing with the subject goods as detailed above. It thus appears that the acts and omissions of Shri Chandan Chatterjee, partner of M/s. Shuvam Enterprises rendered the subject goods (red sanders) liable to confiscation and thereby Shri Chandan Chatterjee is liable to penal action under Section 114(i) of the Customs Act, 1962 for the grounds mentioned hereinbefore. 7. Analysing the said charges, it would be of interest to see as to how the learned Adjudicating Authority has dealt with the said charges. Thus para 45 and 45.1 of the order in original concerning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thus failed to discharge his obligations as a CHA. From the analysis of the call record at para 28.3 of the SCN it is found that even after interception of both the containers, Shri Chatterjee was in touch with Shri Sanjay Singh (notice No. 1) in as much as, on 30.11.12, Shri Sanjay Singh called Sri Chatterjee four times and sent an SMS and also received calls of Shri Chandan Chatterjee twenty times. Further, Shri Chatterjee received the carting order from the container agent on being advised by Shri Sanjay Singh, as would be evident from the e- mail correspondences, but did not verify the container seals with the CTD documents which he processed at Customs House, Kolkata. The very fact that Shri Sanjay Singh, having his purported office at M.G. Road, Kolkata (which is not far from the Customs House) was never coming forward but always communicating by phone or email was sufficient reason to cause suspicion, which Shri Chatterjee has ignored. Further it is not the first time that a consignment of Red Sanders has been intercepted at the time of export by misdeclaration of description by unscrupulous persons/exporters. Many such cases have been caught and several CHAs have been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in contact with the client post detection of the act of attempted smuggling or communicating with clients on email despite being located nearby, do not in themselves establish any conspiracy, abetment or involvement in the act of smuggling and cannot be interpreted to mean anything ulterior with sinister designs. In so far as the issue concerning non-checking of the bottle seals is concerned, it must be pointed out that it is the prime responsibility of the Customs Officers concerned to verify the seals on the container and this responsibility cannot be cast upon the Custom Broker (read appellant). It be noted that in terms of the obligations under the CHALR, no case remains any further in view of the said proceedings, having attained finality. It is the expressly incumbent on the department to have pointed out the role played by the individual/appellant herein for imposition of penalty on them under Section 114(i) of the Customs Act. We also note that there is no finding by the adjudicating authority to indicate any beneficial consideration having been passed on to the appellant by way of a monetary reward or otherwise for his assumed role for which the appellant has been pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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