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2019 (5) TMI 928

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..... ng or omission, of any act or omission, which will render the goods liable to confiscation - Cogent, tangible and reliable evidence is required for such penal actions. There is no evidence to establish that the appellant was aware that the clearance work undertaken by them at the instance of the said Mukhtar Sheikh, was not of a genuine importer. Nor any evidence has been produced to show that the appellant had the knowledge of any fraud or mis-declaration. As per the evidence on record, import of cigarettes under the guise of trolley bags was not within the knowledge of the Appellant and this establishes that the CHA was not aware about the violations beforehand. No evidence has been brought out about the prior knowledge of the appellant r .....

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..... s. The Appellant is the partner of M/s. P N Shipping -CHA. One Mukhtar Shaikh of M/s. Fast Forward Logistics Solutions approached them and started giving them business of import & export clearance. In past also during the period December, 2014 to April, 2015 the said Mukhtar Shaikh gave work to the appellants regarding 6 import consignments of different importers (IEC holders) and the appellant cleared them from JNCH. The said Mukhtar Shaikh used to forward the invoice, packing list, Airway Bill & certificate of origin by email to the Appellant and on the basis of that information, the appellant used to prepare the final check list and mail it to Mukhtar Shaikh for his approval and on getting his approval, he used to upload this che .....

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..... , a show cause notice dated 29.10.2015 was issued by DRI to 7 known persons including the Appellant viz., Omkar Rajender Kumar Keer, Kanaiya Hurbada, Rajan Hemraj Bhanushali, Dinesh Bhanushali, Mukhtar Shaikh, Jaideep Ramniklal Shah, Suresh Bhanushali and other unknown persons in connection with seizure of Omega Trolley Bags valued at ₹ 6,34,500/- and cigarettes valued at ₹ 3,36,62,160/-(LMV); totally valued at ₹ 3,42,96,660/- (LMV) imported in the name of M/s. Ganesh Enterprises. So far as the appellant is concerned, the said show cause notice was for the purpose of imposition of penalty under Section 112(a) of the Act. Since this Appeal has been filed by the Appellant i.e. CHA only, therefore I am confining my order to t .....

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..... y IEC, PAN card, Aadhar Card, Signature verification from the concerned bank, ITRs alongwith P&L A/c statement and ST-1 form and after due verification of these documents through site of DGFT, entered the particulars in the job register on 7.5.2015. On the other hand, the learned Authorised Representative for the Revenue reiterated the findings recorded in the impugned order and prayed for dismissal of the Appeal. 6. For failure of fulfilling certain obligations, penalty under Section 112(a) has been imposed on the Appellant. Imposition of penalty on the Appellant i.e. CHA under Section 112(a) of the Customs Act, 1982 is the issue in the instant Appeal. This section deals with the cases of confiscatory goods where abetment goes to the r .....

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..... settled principle that lack of due diligence and failure to take more precautions cannot, by itself bring in penal consequences under Section 112(a). For imposition of penalty under Section 112(a), a positive act or omission is to be established. For imposition of penalty malafide act/omission is one of the requirements. Admittedly negligence is there on the part of the Appellant and the Appellant admitted violation of CHA Regulations on his part. Such negligence/omission on the part of the Appellant may attract proceedings, if at all, under the regulations for licensing of a CHA, which, I have been informed, are already pending against the Appellant. 7. When there is no evidence to establish that the appellant had prior knowledge of the il .....

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