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2016 (10) TMI 1290 - AT - CustomsImposition of penalty u/s 114 of Customs Act on CHA - non-application of mind - vicarious liability - it is alleged that CHA have abetted in the fraudulent exports of the impugned goods effected/attempted by M/s. CMA Overseas - HELD THAT:- It is seen that the appeal can be disposed of on the short ground of non-application of mind by the adjudicating authority. The lack of diligence as well as the participative role ascribed to the appellant cannot be alienated from the licensee. While a partner can be proceeded against in his individual capacity for acts of omission and commission in relation to goods that are held liable for confiscation, the primary role of the Customs house agent, in relation to use of the licence issued to the agent, cannot be shifted to an individual, howsoever influential he or she may be in the licensed entity. The fastening of vicarious responsibility on the appellant is beyond the pale of law. Imposition of penalty is a harsh measure to be invoked after due deliberation of the acts that have led to such offence as are clearly identified in the statute as penalizable. Section 114 has two facets which are to be invoked in mutually exclusive situations. That the adjudicating authority has failed to appreciate the distinction and has failed to invoke the particular provision taints his finding. Appeal allowed - decided in favor of appellant.
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