TMI Blog2017 (10) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Regulation 18 read with Regulation 20 22 of CABLR 2013 read with Regulation 20(1) read with Regulation 22 of CHALR 2014 has been imposed on the appellant in each case as facts and observations are almost identical, therefore, both the appeals are disposed of by a common order. Appeal No. C/51650/2016 2. The brief facts of the case are that the appellant is a customs broker and registered under Bombay, Ludhiana, Vishakhapatnam, Noida and Kandla under Regulation 9 CHALR 2004 presently Regulation 7 CBLR 2013. One M/s. Velocity Impex having their office in Bombay filed a shipping bill no. 3297829 dated 14.06.2014 for export of 365.76 Sq. Mtrs of Granite slabs to Singapore per vessel M/s. Passat Spring. Intelligence received indicated that a gang of smugglers were attempting to export red sanders stuffed in two containers which were lying in the premises of M/s. Visakha Container Terminal Pvt. Ltd., Vishakhapatnam. In pursuance of the said intelligence, the officers of DRI identified the containers bearing number APZU3456821 in which read sanders was stuffed, and container number APZU3499572 in which the declared cargo i.e. Granite slabs was present. These containers we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it has also been observed that customs broker has not direct flow in the impugned shipment of M/s. Velocity Impex. In that circumstances, it says that there is no violation on behalf of the appellant and Customs Broker License Regulation 2013. Therefore, no penalty is to be imposed on the appellant. He further submits that during the course of proceedings, enquiry officers was appointed and who has clearly given the findings in his report that Shri Pandiri Praveen Kumar has acted in the capacity of Managing Director of Dattar Shipping and Logistics Pvt. Ltd. and as second employee of ICS Cargo i.e. the appellant. It was also found by the enquiry officer that there was no authorization given to Shri Pandiri Praveen Kumar by the appellant and the appellant has not played any specific role in the instant case. In these circumstances, penalty on the appellant is not imposable in the light of the decision of this Tribunal in the case of Buhariwala Logistics Vs. CC New Delhi 2016 (331) ELT 633 (Tri-Del) . Therefore, impugned orders are to be set aside. 7. On the other hand, ld. AR supported the impugned order. 8. Heard both the sides. Considered the submissions. 9. On ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Kumar was G card holder and he was not allowed to enter in the customs area by the appellant and activity of Shri Pandiri Praveen Kumar was not in knowledge of the appellant. Therefore, no penalty can be imposed in the light of the decision of this Tribunal in the case of Buhariwala Logistics wherein this Tribunal has observed as under: 5. We have considered the contentions of both sides. In this regard, we find that Mr. G.S. Prince admitted in his statement that he acted in his personal capacity and the appellant. CHA was not aware his activities in this regard. It is also seen that the appellant s statement was never recorded and there is no evidence to suggest that the appellant was aware of the activities of Mr. G.S. Prince. In this regard, we find that in respect of Appeal Nos. C/58871 60232/2013-Cus(DB), the CESTAT allowed the appellant s appeal vide Final Order Nos. 55023-55024, dated 17-12-2014 [2015 (326) E.L.T. 170 (Tribunal)] and set aside the penalties imposed upon it on similar grounds and on the basis of similar evidence. CESTAT in that order came to a finding that there was no evidence to prove the involvement of the appellant, that its employee had suo m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , since Sh. G.S. Prince was acting on behalf of M/s. Buhariwala Logistics. Therefore, it appears that M/s. Buhariwala Logistics failed to perform their duty obligations under the CHALR, 2004 for which proceedings can be initiated under the said Rules. As far as violations under the Customs Act, 1962 are concerned, I do not find any role of M/s. Buhariwala Logistics in the present matter. In view of this fact, I refrain from imposing any penalty on M/s. Buhariwala Logistics in the present case. Thereafter the penalty on the appellant has been dropped but the penalty on Shri G.S. Prince was imposed. Further we find that in the case of CC v. Vaz Forwarding Ltd. (supra), wherein the penalty was dropped on the CHA in absence of evidence of the knowledge of the CHA. Further, in the case of S.Y Ranade (supra), it was held that there is no evidence to prove the involvement of the CHA and an employee has suo motu acted for his personal greed and beyond the scope of his duty, therefore the employer, i.e., CHA cannot be penalised. In this case also, it is not in the knowledge of the appellant that Shri G.S. Prince is involved in illegal importer and Shri G.S. Prince acted in his persona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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