TMI Blog2017 (10) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of evidence which indicate that appellant had a role, which is tantamounts to abettment in export of goods which are liable for confiscation, penalties imposed on these appellants are liable to be set aside - similar issue decided in the case of Sarosh Nagarwala, Skylark Travels Pvt Ltd, Flavian Walter D’Souza Versus Commissioner of Customs (Export) [2017 (1) TMI 405 - CESTAT MUMBAI], where it was held that provisions of Customs Act cannot be applied for in case of there being no finding as to the role attributable to appellants - appeal allowed - decided in favor of appellant. - C/920/2012-SM, C/1063/2012-SM - 22297-22298/2017 - Dated:- 26-9-2017 - Shri M. V. Ravindran, Judicial Member Shri Pradyumna G.H., Advocate For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 114(i) and 114 AA of the Customs Act, 1962. Appellants contested the show-cause notice on merits. The adjudicating did not agree with the contentions raised and imposed penalties on them which is contested. 5. Learned counsel appearing for both the appellants took me through the findings recorded by the adjudicating authority in paragraph Nos. 44 and 45 of the order impugned. It is his submission that the findings recorded do not indicate that the adjudicating authority has come to the conclusion whether there was violation on the part of the appellant which rendered the goods liable for confiscation under Section 113 of the Customs Act, 1962 or otherwise. He would submit that similar issue came up before the Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arders Pvt. Ltd., the show-cause notice alleged that they had undertaken the CHA work without exercising adequate caution, without causing necessary verification and without employing due diligence and used false and incorrect material and thus abetted the attempt to smuggle out ketamine hydrochloride. The CHA maintained that they had verified IE Code and AD code and then taken up the work of processing of export documentation. As per Rule 13(o) of CHALR, 2004 which was introduced keeping in view the KYC Norms vide Notification No.30/2010 dated 8.4.2010, CHAs are required to verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly not been done by the CHA. As per Regulation 13(e) CHA has to exercise due diligence to ascertain the correctness of any information which he imparts to a client. In this case the CHA has accepted documents on behalf of a fictitious Ghaziabad based company and also accepted documents signed by one Ajay which was actually done by Mr. Satish of Nayak Aviation. The CHA clearly failed to advise his client, the exporter, ignored the suspicious activity of export of garments under a free Shipping Bill and failed to comply with Regulation (o) of CHALR. I therefore hold that the CHA has abetted in the attempt of alleged export and is therefore liable for penal action under the provisions of Customs Act. 45. Regarding Mr. Rajesh of M/s. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 house agent' and are, indeed, enumerated in the Customs House Agents Licencing Regulations, 2004 and it successor Regulations. These are framed by the Central Board of Excise Customs in exercise of powers under section 146 of Customs Act, 1962. The enabling provision in the statute also empowers the notifying authority to in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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