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2015 (10) TMI 494 - CESTAT MUMBAI

2015 (10) TMI 494 - CESTAT MUMBAI - TMI - Penalty u/s 114(ii) - Shortage of goods found - Misdeclaration - Held that:- Under the facts and circumstances that is no lapse on the part of the CHA. The CHA acted on the instructions of the exporter and documents given. He had identified exporter before the Customs Authorities. Further the said exporters have accepted the responsibility for the mis-declaration in the sq. ft. of the carpets under export. Further no elements of aiding and abetting have .....

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it appears was not produced due to clerical error, but the fact has been stated and accepted by the exporter. That the penalty retained in the impugned order is set aside. - Decided in favour of Appellant. - Appeal No. C/86856/13, Application No. C/CO/91102/13 - Dated:- 11-5-2015 - Anil Choudhary, Member (J), J. For the Appellant : Shri Prashant Patankar, Adv For the Respondent : Shri M.K. Sarangi, Dy. Commr. ( A. R. ) ORDER Per Anil Choudhary The appellant is a CHA and filed the present appeal .....

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ing IEC number 0304014834, having its office at Vasai-West, Thane. The consignment said to contain Indian Hand Tufted Woollen Floor Covering Carpets' and Indian Floor Covering Carpets'. The said consignments was passed by the Examiner of Customs and let export order was issued on 16/09/2009. Subsequently the said consignments was passed by the Examiner of Customs and let export order was issued on 16/09/2009. Subsequently the said consignments were detained and subjected to 100% examinat .....

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.) Actual area found on examination (in Sq. Ft.) 1 7679001/11.09.2009 5442.386 3179.44 2 7679003/11.09.2009 6405.764 4288.38 3 7679004/11.09.2009 6234.078 3674.593 4 7679007/11.09.2009 6288.867 3932.197 5 7679009/11.09.2009 7434.26424 6466.48 3. The total FOB value of all the 5 consignments consisting of 301 rolls of woollen and polyster carpets was declared at ₹ 72,50,350.45 and combined declared area of 31805.35924 square feet and the total drawback on the said 5 shipping bills was ͅ .....

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that as per agreement between the exporter and the consignee the mode of payment was direct. As it was found that the export was mis-declared (carpet area or size of the carpets) accordingly the same was found to be liable to confiscation. It is further relevant that the export benefit is related to the size of the carpet exported from India (i.e. per sq ft.). To ascertain the value of the carpets the services of approved valuer was taken by the Revenue. The said valuer reported that the value .....

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id consignment be confiscated and the permission granted under Section 51(L.E. Order) of the Act be not cancelled and further as to why not the goods of the declared value be not confiscated and further the present appellant-CHA penalty was proposed on him and in terms of Section 114(i) and 114(iii) and 114AA of the Customs Act, alleging aiding and abetting on their part. 4. The appellant CHA appeared and contested the show-cause notice stating that they had filed the shipping bills on the basis .....

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tainer was delivered at the CFS gate by the exporter. In the course of physical examination, the Customs Examiner also did not notice any discrepancy. Further the CHA had filed the shipping bill, after verifying the credential of the exporter, under proper authorisation. Further no allegation is made by the exporters implicating the CHA, in the mis-declaration of the area of the carpets under export. The show-cause notice was adjudicated by the common order dated 24.01.2012 where by the let expo .....

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14(iii) of the Act by recording finding that at no stage the CHA could produce the authorisation given by the exporter for filing the shipping bills and further there is slackness on the part of the CHA. 5. Being aggrieved the appellant had filed appeal before the Commissioner (Appeals) vide the impugned order was pleased to allow the appeal in part by reducing the penalty from ₹ 50,000/- recording finding that this being the first consignment of the exporter to be handled by the appellant .....

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is further urged that the fact of authorisation was stated at the very first opportunity when the statement of the employee was recorded by the Revenue of the exporters. Further the exporter have accepted his Act of mis-declaration, solely attributable to him. No fact of aiding and abetting is, found in relation or any other misgiving. Further the value declared of the carpet (per sq. ft.) have been found to be correct. Further the finding in the impugned order is advisory in nature, that the C .....

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as found non-existent and fictitious. Such facts are not obtaining in the present case. SO far the other ruling is concerned relied upon by the Commissioner (Appeals) in Sundaram Finance vs. Commissioner of Customs 2012 (279) LT 220 (Tri-Mad) the same is in respect of penalty on teh exporter and does not support the case of the Revenue. Further the learned Counsel relies on the ruling in the case of Commissioner of Customs, Mumbai vs. M. Vasi 2003 (151) ELT 312, wherein in the case of post parce .....

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. 2008 (227) ELT 577 - it was held that the custom house agent is not required to go into the authenticity of the declarations made by exporter in the export documents. In the absence of evidence of CHA having abetted in offence, penalty was held not imposable. His job is confined to submission of the documents given by the exporter. Whether the goods presented for export was in accordance with the declaration was a fact known to the exporters, but not with the CHA. It is a question to be addres .....

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