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2022 (10) TMI 258 - BOMBAY HIGH COURTMaintainability of petition - availability of alternate and efficacious remedy of filing an appeal before the CESTAT - pre-condition of filing an appeal - requirement to deposit 7.5% of the penalty that was imposed upon Petitioner - containers allegedly contained goods materially different from the goods disclosed in the Bills of Entry - HELD THAT:- Admittedly, the goods came in sealed containers. Mr. Balani has placed on record seven Bills of Lading by which seven containers arrived at Nhava Sheva Port. The seven containers are 40 ft. containers and were Full Container Load (FCL) containers. The Bills of Lading also provided for disclaimer by carrier. The description of goods in Bills of Lading also states; “Shipper’s Load and count xxx cartons”, and particulars were furnished by Merchant - it is nobody’s case that Petitioner knew what was contained in those containers and even if there is any allegation, which we could not find in the impugned order, there is no finding as to how Petitioner would have known what was there inside the sealed containers. The Custom House Agent, which the Petitioner was, only files the Bills of Entry on behalf of the importer relying on the documents provided to him by the importer, and if there is mis-match between what is mentioned in the documents given to the Customs House Agent to file Bills of Entry and what is found in the FCL container, prima-facie, the Custom House Agent cannot be made liable; Added to that in the case at hand the 7x40 ft. containers were FCL containers - To impose total penalty of Rs.5.77 Crores on such Custom House Agent and without any satisfactory findings that he knew what was inside the 7x40 ft. containers or he knowingly or intentionally made any declaration would certainly cause undue hardship and more so to a person who has to file an appeal and deposit Rs.43,27,500/- being 7.5% of Rs.27 Lakhs plus Rs.5.5 Crores as pre-condition to filing an appeal. Petition is admitted.
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