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Sarosh Nagarwala, Skylark Travels Pvt Ltd, Flavian Walter D’Souza Versus Commissioner of Customs (Export)

2017 (1) TMI 405 - CESTAT MUMBAI

Imposition of penalty u/s 114 (i) of Customs Act, 1962 - smuggling - Held that: - The role of a customs house agent in relation to export commences with the filing of the shipping bill and is completed when the consignment is handed over to the agent of the carrier. In the absence of an allegation, or a finding, that the substitution occurred during this window, responsibility cannot be fastened on the agent - Penalty set aside - appeal allowed - decided in favor of appellant. - Appeals No. C/67 .....

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osed for alleged involvement in attempt to smuggle out 6.9 metric tons of red sanders in containers entered for export 'lock washers' in the shipping bills filed through the appellant in its capacity as customs house agent licenced under Customs House Agent Regulations, 2004. The other two appellants in the challenge to the impugned order are individuals imposed with penalties. 2. It is not in dispute that M/s Skylark Travels Pvt Ltd did file the shipping bill pertaining to the export. I .....

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had supplied the documents and admitted to cognizance of its fraudulent origin had not been made noticees in the proceedings under Customs Act, 1962 whereas they, who were not implicated in any of the statements as having been part of the conspiracy to smuggle, had been. A similar plea was raised by the two other appellants. 3. Heard Learned Counsel for appellants and Learned Authorised Representative. I find that the matter can be decided based on the facts on record. 4. M/s Skylark Travels Pv .....

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uance of Convention on International Trade in Endangered Species (CITES) and was declared as lock washers ; there has been no allegation that the consignment was substituted between the filing of the shipping bill and the entry into the export area. The role of a 'customs house agent' in relation to export commences with the filing of the shipping bill and is completed when the consignment is handed over to the agent of the carrier. In the absence of an allegation, or a finding, that the .....

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t section 114 (i) of Customs Act, 1962 can be invoked is without any foundation. 6. Despite the original authority having noted the lack of any evidence or statement to link appellant with the offence, the impugned order has gone on to invoke the penal provision by relying, in passing, upon the allegations in the show cause notice. First appellate authority, too, relies solely on those allegations which were made with reference to alleged misconduct while discharging the functions of customs hou .....

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breach thereof, it is not legal and proper to bring such breach within the ambit of another statutory provision which is intended to penalise smuggling of goods, or attempt thereof, unless that latter provision specifically intends such coverage. There can be no doubt that a customs house agent can be penalised under section 114 of Customs Act, 1962 but that penalty must follow a finding that an act of omission or commission on the part of customs house agent rendered the goods liable for confis .....

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