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TMI Blog2006 (4) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... pite of the fact that IWAI Jetty is not a place of loading of export goods, under the direct supervision of Customs Officials and that too after accepting the appropriate fees for deputing the Customs Officials to supervise the loading, the Customs Officials cleared the said export. Once such fact is apparent, it necessarily follows that Customs Officials gave permission to export those goods from that place and the Tribunal rightly concluded that a Custom House Agent cannot be blamed for irregularities, if at all, committed by the Customs Officials. In this case, the Commissioner of Customs (Preventive) has not alleged connivance of the exporter or the Custom House Agent with any of the Officials of Customs but at the same time, blamed the Custom House Agent for such irregularity. It is, therefore, apparent that the goods were exported under direct supervision of Customs Officials either under the impression that the Commissioner of Customs was entitled to give such permission or through ignorance, but in view of precedents of this nature, the Custom House Agent did not commit any illegality by presenting the duplicate Bill with insertion of word 'Haldia' by the agent of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officials of the Customs has been alleged. The position would have been different if the Commissioner of Customs alleged connivance of the respondent with the Officers of the Customs who passed the clearance and permitted deportation. We, thus, find no reason to interfere with the order passed by the Tribunal. The appeal is devoid of any substance and is accordingly dismissed. In the facts and circumstances, there will be, however, no order as to costs. - BHASKAR BHATTACHARYA AND PRAVENDU NARAYAN SINHA, JJ. Shri Biswanath Samaddar, Mrs. Sobnam Dey, for the Appellant. Shri Pranab Kumar Dutt, K. Chatterjee and N.K. Chowdhury, for the Respondent. ORDER [Order per : Justice Bhaskar Bhattacharya, J.]. - By this appeal under Section 130 of the Customs Act (hereinafter referred to as the Act), the Commissioner of Customs (Preventive), West Bengal has challenged two orders passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Eastern Bench, Kolkata, the one dated 4th May, 2005 and the other, dated 4th October, 2005 in Appeal No. SP-718 of 2004/CSM-115 of 2004 and in Appeal No. CSM-18 of 2005 respectively. 2. The facts giving rise to filing of this appeal may be summa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, TT Shed Land Customs Station, Kolkata, G.R. Road. (e) Sri Paramangsu Bhowmik, the authorised representative of SEL also made written statement under Section 108 of the Act stating that he was the authorised signatory of SEL and that he in his own hand-writing had inserted the word Haldia in the column meant for Land Customs Station in the Bills of Export, after those were appraised by the Superintendent of Customs (Technical), West Bengal, Kolkata, knowing fully well that Haldia is not an authorised LC Station and that the Commissioner of Customs (Preventive), West Bengal did not permit SEL to export the subject consignments through Haldia, IWAI Jetty. (f) In view of the aforesaid fact, the Commissioner of Customs (Preventive), West Bengal imposed a penalty of Rs. 50,000/- on SEL under Section 114 of the Act and a similar penalty of Rs. 50,000/- on OLA under Section 114 for violation of the provisions of Section 33 of the Act and further a penalty of Rs. 10,000/- was imposed on M/s. Voyage Maritime Pvt. Ltd. under Section 117 of the Act. (g) Being dissatisfied with the aforesaid order imposing penalty OLA had preferred an appeal before the Tribunal and by order dated 4th M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L by their letter dated 21st January, 2003 informed the Superintendent of Customs (Technical), Kolkata that their consignments would be exported by barge from IWAI Terminal Jetty, Haldia which is outside the Haldia Port. They also intimated that their goods had been lying at Haldia and two of the barges were waiting at Haldia for lifting the goods. They also stated that if they could not export in time, they would be penalised by payment of demurrage charges of the barges and the godown rent. SEL through their letter dated 29th January, 2003 brought to the notice of the Commissioner of Customs (Preventive), their earlier letter and the letter received by them from Superintendent of Customs (Technical). They specifically mentioned that their consignment would be loaded from Haldia IWAI Terminal Jetty which is outside the Haldia Port and they requested for early permission from the Commissioner for smooth export of the goods. The Superintendent of Customs (Ex.) by his letter dated 29th January, 2003 informed SEL that he was directed to inform that loading permission could not be given outside the specified place under Section 7 of the Act. (iv) As on earlier occasions such permission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made by the exporter, viz. SEL and also by the West Bengal Essential Commodities Supply Corporation Ltd. and having bona fide belief that the formal permission would be accorded by the Commissioner, the goods were exported under the supervision of the Customs and the export was allowed by the proper Customs Officers. The same proceeds were also received through bank by the exporter. (viii) Regarding alleged interpolation of the word Haldia , they stated that when the goods were exported from Haldia, the word Haldia was written by Sri Paramangsu Bhowmik, an employee of SEL and there was no question of interpolation in the Shipping Bill by the agent and Sri Bhowmik in his Statement under Section 108 also admitted that he had written the word Haldia as because the goods were being exported from Haldia and Haidia was written at the instance of the Customs Officers. Therefore, the agents have not violated the provisions of Regulations 14(d) and 14(1) of CHALR, 1984. (j) The Commissioner of Customs (Preventive), West Bengal however, by order dated 5th January, 2004 found the agent guilty and in exercise of power vested under Regulation 21 of CHALR, 1984 revoked the Custom House Agent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends that the Tribunal erred in law in not considering the real issue before it but was influenced by the fact that there was no loss of revenue; but the question whether the procedure laid down under the Customs Act and the Rules and Regulations and Circulars made thereunder were strictly adhered to by the agent was not considered and once it is established that there had been violation, the Tribunal ought not to have set aside the order of imposition of penalty. He, therefore, prays for setting aside those two orders passed by the Tribunal. 7. Mr. Dutt, the learned Advocate appearing on behalf of the respondent, opposed the aforesaid contentions of Mr. Samaddar and submitted that the Tribunal on consideration of the entire materials on record rightly came to the conclusion that there has been no material irregularity on the part of the agent in producing the Bill with the hand-written portion Haldia and for such act on the part of the Custom House Agent, the nation had not suffered any loss. Mr. Dutt further contends that it is the Customs Officials who themselves cleared the goods knowing fully well that the IWAI Jetty was not a loading place for export and in the past also on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted by the Customs Officials. In this case, the Commissioner of Customs (Preventive) has not alleged connivance of the exporter or the Custom House Agent with any of the Officials of Customs but at the same time, blamed the Custom House Agent for such irregularity. 9. It is, therefore, apparent that the goods were exported under direct supervision of Customs Officials either under the impression that the Commissioner of Customs was entitled to give such permission or through ignorance, but in view of precedents of this nature, the Custom House Agent did not commit any illegality by presenting the duplicate Bill with insertion of word Haldia by the agent of the exporter. 10. According to Regulation 14(d) of CHALR, 1984, it is the duty of the Custom House Agent to advise his client to comply with the provisions of the Act and in case of non-compliance, it is duty to bring the matter to the notice of the Assistant Commissioner of Customs or Deputy Commissioner of Customs. In the case before use, if the Customs Officers themselves have permitted exportation, there is every scope of bona fide belief of the Custom House Agent that such permission must be in accordance with the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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