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TMI Blog2024 (5) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondents made any document which is false or incorrect in any material particular. The exact nature of the document alleged to be fabricated by these Respondents is not brought out in the grounds of appeals filed by the department. In the absence of ingredients to attract Section 114 AA the penalty under the said Section cannot be imposed. The Tribunal in the case of M/s. Artisan Welfare Society [ 2023 (7) TMI 841 - CESTAT CHENNAI] had occasion to consider a similar situation. The facts in the said case was attempt to export red sanders. The Tribunal observed that as the investigation could not prove that the exporter therein knowingly or intentionally made any false declaration or statement could not be punished by penalty u/s 114 AA. Thus, we find that the order passed by the adjudicating authority in not imposing the penalty u/s 114 AA does not require any interference. The appeal filed by the department is devoid of merits. The appeals are dismissed. - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri R. Rajaraman, Authorised Representative for the Appellant Ms. Vishnu Priya, (Amicus Curie), Advocate for the Respondent ORDER Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of entry was filed as a Power of Attorney holder. During the course of personal hearing before the adjudicating authority, there was an attempt by the Respondents to state that it was a case of mistaken shipment and the cigarettes were meant for some other port. It was stated by them that on instructions from their importer they have contacted the overseas supplier and would be returning the container to Malaysia. Inspite of evidences showing that the importers had tried to smuggle the cigarettes into the country, the adjudicating authority has not imposed any penalty on the respondents under Section 114 AA. Further, the proceedings against the Respondent, Shri Jaffer has been wholly dropped by the adjudicating authority. The learned AR adverted to the allegations raised in the Show Cause Notice. In para 10 of the Show Cause Notice, the role played by Shri D. Vignesh is clear. This Power of attorney holder of M/s. KBS Manian Brothers Pvt Ltd. and Managing Director of the CHA firm has deposed that he came to know about one Shri Jaffer of All Port Logistics in Malaysia during first week of September 2012, Shri Jaffer contacted him and requested him to handle the clearance of gypsum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 112 (a) of the Customs Act 1962. The learned AR prayed that the appeals may be allowed by revising the impugned order and imposing penalties on the Respondents under Section 114 AA of the Customs Act 1962. 9. None appeared for the Respondents even though repeated notices were issued. The notice sent to Shri Vignesh, was returned as addressee left . The Bench appointed Learned Counsel, Ms. Vishnu Priya, as the Amicus Curie to assist the Bench in disposing the case. The Ld. Counsel Ms. Vishnu Priya submitted her arguments which are summarized as under. The discussions made by the adjudicating authority in para 35 to 37 was adverted to by the Ld. Counsel to argue that there are no grounds to impose penalty under Section 114 AA. It is submitted by the Ld. Counsel that only Shri Vignesh, Power of Attorney holder and the CHA firm M/s KBS Manian and Brother Pvt Ltd. had appeared and contested the matter before the adjudicating authority. The other three Respondents namely M/s. Ganga Enterprises, Shri Yuvaraj Singh and Shri Jaffer neither filed any reply to Show Cause Notice nor appeared for personal hearing. M/s. Ganga Enterprises is the importer and Shri Anil Gupta is its Proprietor. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard both sides. 14. The appeal has been filed by the department aggrieved by the order passed by the adjudicating authority in not imposing penalty under Section 114 AA of Customs Act 1962 on the Respondents. The facts narrated above show that there had been an attempt to smuggle cigarettes in to the country. The main person who was entrusted to import the goods is Shri Jaffer of Malaysia. The said person had contacted Shri Vignesh to file the bill of entry under the IEC code of M/s. Ganga Enterprises. However, Shri Jaffer was not traceable. The adjudicating authority has dropped the entire proceedings against Shri Jaffer. In para 35 to 37 the adjudicating authority had discussed in detail the reasons for not imposing penalty under Section 114 AA on the Respondents. The department has not able to establish that these Respondents made any document which is false or incorrect in any material particular. The exact nature of the document alleged to be fabricated by these Respondents is not brought out in the grounds of appeals filed by the department. In the absence of ingredients to attract Section 114 AA the penalty under the said Section cannot be imposed. 15. The Tribunal in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no way extends to the acts done by a CHA/CB who acts on behalf of the importer/exporter under the provisions of Customs Act, Rules and Regulations. The Tribunal in the case of Gajanan B. Sutrik (supra) had occasion to consider similar issue and held as under: 5. We have carefully considered the submissions made by both sides. We have also perused the statements recorded from the appellants by the investigating agency. From the statement, no conclusion can be reached as to their involvement in the fraudulent transactions. All the appellants in their statements have deposed that they undertook/participated in transaction for export of goods in good faith. The CHA has also submitted the identification document such as bank opening account establishing the identity of the exporter. In these circumstances, invoking the provisions of Section 147 and deeming the CHA and his employee as agent of the exporter is clearly unsustainable in law. This Tribunal decision in case of Aspinwall Co. (supra) affirmed by Hon ble Apex Court also makes the position very clear. Therefore, in the absence of any evidence, linking the CHA firm or its employee to the fraudulent transaction undertaken by the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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