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TMI Blog2017 (10) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... records, it transpires that show-cause notices were issued to various persons and also these two appellants, in appeal gainst impugned order No. 21/2011 dated 30.01.2012 before the Tribunal. The adjudicating authority by the order impugned has held that M/s. Leadking Sea Air Forwarders Pvt. Ltd. being a CHA has to be penalized under the provisions of Section 114(i) and 114 AA of the Customs Act, 1962 and Shri Rajesh being Manager of the said company needs to be penalized under the same provisions. 4. The relevant facts, that arise for consideration herein are the allegations in the show-cause notice indicate that the main appellant herein being a CHA has not verified the antecedent of the exporters who sought to export Ketamine Hydrochlor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice the very same paragraph wherein the adjudicating authority has recorded the findings. He submits that the main appellant CHA never checked the antecedent of the exporters and more so when the said exporters, only checking of the correctness of import export code does not mean the proper checking has been done and he should have been more vigilant as to find out whether the exporters were functioning from the declared address or otherwise. 7. After considering the submissions made by both sides and perusal of records, I find that the issue falls for consideration is regarding the penalties imposed under provisions of Section 114(i) and 114 AA of the Customs Act, 1962 on these two appeals on the ground that they have violated the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the consignment cleared by the CHA, this office has prohibited operation of their licence and the parent Commissionerate where their Original Licence is registered have been informed to take necessary action and accordingly their licence has been suspended across the country. The CHA has quoted myriad case laws that in the absence of involvement in the fraud no action can be taken against them. They have vehemently contended that mere filing shipping bill does not amount to abetting the offence. They have further stated that their License has been suspended and that they are out of business for two years. They further submitted that it has taken toll on the livelihood. I also see that they have relied on Mr. Satish of Nayak A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , accepted documents i.e declarations, invoice, packing list signed by one non-existent Ajay and therefore rendered himself liable for penal action." It can be seen from the above reproduced paragraph that the adjudicating authority has recorded the findings against the main appellant as to how the act of appellants has violated the provisions of Rule 13(o) of CHALR 2004 and has not discussed any issue as to the violation of the Customs Act, 1962 by these appellants. In my view, when the adjudicating authority himself has abandoned the allegations in the show-cause notice for the violation of the Customs Act 1962, there being absence of evidence which indicate that appellant had a role, which is tantamounts to abettment in export of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 confiscation. To link up carriage of contraband with failure to ascertain the identity of exporter or obtain the authorization is to infer that such ascertainment or obtaining would have prevented the attempt to smuggle. Nor is it credible to infer that failure to do so has encouraged the perpetrators. If enforcement were so ludicrously simple, the immense manpower resource appointed under the Customs Act, 1962 can be done away with. If deviation from the code of conduct enumerated the Regulations were to be dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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