TMI Blog2018 (8) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... Prabhu [2015 (1) TMI 1032 - MADRAS HIGH COURT] wherein the Hon’ble High Court of Madras has held that for the failure of the CHA to discharge his functions, penalties are provided in the CHALR, and imposition of penalty under Section 114 (i) of the Customs Act is unwarranted. The adjudicating authority while dropping proposed penalty under Section 114AA has categorically found that no mens rea can be alleged against these appellants - the alleged infraction should at the most result, if at all, be initiation of proceedings under CHALR 2004 and surely not under the Customs Act, 1962. Appeal allowed in part. - C/141/2011, C/66/2011, C/104/2011, C/139/2011, C/140/2011 - Final Order No. 42172-42176 / 2018 - Dated:- 30-7-2018 - Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shipping Services), Sri M.K.M. Manthiram (Branch Manager of M/s.Smile Shipping Services), Shri V. Muthuraj, Proprietor of Vishwa Shipping Services (Freight Forwarder) and Shri C. Gunasekaran (Authorized Signatory of Smile Shipping Services). The adjudication proceedings culminated in issue of impugned order dt. 22.12.2010 by the adjudicating authority inter alia confirming proposals in the SCN and also imposing following penalties : under Section 114 (i) of the Act, inter alia on Shri A.P.T. Mahadevan ₹ 25,00,000/- under Section 117 of the Act, inter alia on Shri M.K.M. Manthiram ₹ 1,00,000/- Shri C. Gunasekaran ₹ 10,000/- M/s.Smile Shipping Services ₹ 1,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iram at paragraphs 28.06 and 28.07 of the impugned order respectively. The adjudicating authority has found that due diligence to ascertain genuineness of the exporter has not been exercised by the CHA and its employees. On this finding, he has held that all are privy to misstatement and illicit attempted export. Ld. Advocate submits that such a finding of negligence to ascertain genuineness of exporter cannot be translated into a drastic conclusion of involvement in smuggling. v) Ld. Advocate drew our attention to para 28.11 of the impugned order where the adjudicating authority has however held that in the issue of signed blank annexures / declarations which have paved the way for illicit export there is no intentional mis-declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices Pvt. Ltd. Vs CC Chennai 2003 (154) ELT 756 (Tri.-Chennai) (iv) Sarosh Nagarwala Vs cc (Export) Nhava Sheva 2017 (358) ELT 542 (Tri.-Mumbai) 3.1 Ld. Advocate Ms. Nancy supports and adopts the arguments of Shri Satish Sundar, Advocate in respect of her appellant (C.Gunasekaran Appeal C/66/2011) also. 4. On the other hand, Ld. A.R Shri A. Cletus supports the impugned order. He points out that even though the adjudicating authority may have held that appellants are not liable for penalty under Section 114AA of the Act, however he has clearly found that there are other violations committed by the appellant, which are specifically covered by other penal provisions of the Act and hence for that reason, he has correctly impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge functions as a Custom House Agent, penalties are provided in the Customs House Agents Licensing Regulations. Therefore, imposition of penalty under Section 114(i) of the Customs Act is unwarranted. We, therefore, find no reason to differ with the finding of the Tribunal. 6.3 The CESTAT Chennai in the cases of Syndicate Shipping Services Pvt. Ltd. Vs CC Chennai (supra) and M. Renganathan Vs CC Chennai (supra) has held that when there is no positive evidence on record to show any malafide intention on the part of the Custom House Agent or that he has abetted such contravention, penalty is not imposable under Section 117 of the customs Act, 1962. 6.4 The show cause notice itself had not proposed any penalty for improper expo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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