TMI Blog2017 (6) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... abets the doing or omission of such an act, shall be liable to a penalty - In the present case, there is no material available on record that the appellant CHA was involved with the importer of the allged offence committed by the importer. In absence of the material evidence on record to show that the CHA connived with the importer in misdeclaration with intent to evade payment of duty, penalty on CHA u/s 112 is unwarranted. Appeal allowed - decided in favor of appellant. - C/76482/14 - FO/A/75960/2017 - Dated:- 31-5-2017 - Shri P.K. Choudhary, Member(Judicial) Shri Sudhir Kr.Mehta, Advocate for the Appellant Shri S.Das Gupta, DC(AR) for the Revenue ORDER Per: Shri P. K. Choudhary The appellant, a Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued after about three years. The ld.Counsel submits that the appellant had given correct description in the Bills of Entry as per invoice. There is no discrepancy between the contents of the documents and the Bills of Entry. It is submitted that the CHA cannot be treated as an importer within the meaning of Section 2(26) of the Customs Act, 1962. There is no iota of evidence that the appellant had advised to the importer with ill motive, hence, imposition of penalty under section 112(a) is not justified. 4. On the other hand, the ld.AR appearing on behalf of the Revenue, reiterates the findings of the Adjudicating Authority. He referred to the case laws as mentioned in the Adjudication Order. 5. Heard both sides and perused the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 46(4) provides that the importer while presenting Bill of Entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such Bill of Entry and shall in support of such declaration, produce to such officer, the invoice, if any, relating to the imported goods. The ld.Counsel on behalf of the appellant placed the Form of Bills of Entry before the Bench to show that the declaration is to be signed by an importer under section 46 of the Act, 1962. Thus, there is a distinction between the declaration by the CHA and the declaration of the importer. The declaration in the Bill of Entry is the statutory obligation of the importer under section 46 of the Act, 1962. The declaration on the part of the CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA cannot prima facie be held to have abetted misdeclaration of the goods under import and rendered the impugned goods liable for confiscation under the Act. We observe that in a recent judgment of the Hon ble High Court of Delhi in the case of Jasjeet Singh Marwaha v. Union of India [2009 (239) E.L.T. 407 (Del.)] the honorable High Court held that it was the obligation of a CHA to ensure that the entries made in the Bills of Entry filed by it were correct and it could be penalized for failure to enter correct particulars in the Bills of Entry under the Custom House Agents Regulations, 2004. Commissioner may examine if the appellant was aware of the misdeclaration involved and yet did not bring the same to the notice of the authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods. In that situation, the penalty on the CHA is not leviable. The decision of V. Esakia Pillai (supra) is squarely applicable to this case, wherein this Tribunal has held that no evidence is available on record in form of confessional statement or any statement of the exporter or anybody to show that CHA had knowledge and information about the misdeclaration of the goods. Accordingly, the penalty imposed on CHA is waived. The Hon ble Gujarat High Court in the case of Commissioner of Customs v. Vaz Forwarding Ltd. [2011 (266) E.L.T. 39 (Guj.)] dismissed the appeal filed by the Revenue in similar situation. It has been held as under :- 5. As can be seen from the impugned order of the Tribunal, the Tribunal after appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal has held that there was no justifiable reason to impose the penalties on the respondent. 7. On the findings of fact recorded by the Tribunal, it is not possible to state that the conclusion arrived at by the Tribunal is in any manner unreasonable so as to warrant interference. The impugned order being based upon findings of fact, therefore, does not give rise to any question of law much less, a substantial question of law. 8 . The appeal is, accordingly, dismissed. 8. After analysing the above decisions of the Tribunal and the Hon ble High Court, I find that in absence of the material evidence on record to show that the CHA connived with the importer in misdeclaration with intent to evade payment of duty, penalty on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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