TMI Blog2019 (9) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been imposed on the importer and not the appellant who is only acting as a CHA. Further, the department has not brought any evidence on record to prove that the appellant had the knowledge of the final invoice or the payment made by Weir to M/s. Barron. This issue has been considered in many decisions of the Tribunal and it has been consistently held that if there is no evidence of aiding and abetting against the CHA, then penalty cannot be imposed on CHA - reliance placed in the case of FALCON INDIA VERSUS COMMR. OF CUS., ICD, TUGHLAKABAD [ 2018 (1) TMI 1526 - CESTAT DELHI] . The imposition of penalty of ₹ 50,000/- on the appellant under Section 117 of the Customs Act, 1962 is not sustainable in law - appeal allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. During post clearance, audit department sought for copy of purchase orders and payment details of Weir and it was then noted that Weir had placed the order on M/s. Barron GJM Pty Ltd., Australia for 2,89,665 AUD. AS per the department, the said amount of 2,89,665 AUD (₹ 1,58,86,694/-) was remitted to Barron by Weir for which the duty liability amounts to ₹ 37,96,104/- as against the liability of ₹ 30,36,641/- paid at the time of clearance. Subsequently, Weir vide letter dated 15.6.2012 paid the differential custom duty of ₹ 7,60,247/- along with interest of ₹ 50,334/-. As per the department, the appellant was aware of the import of the goods by Weir from M/s. Barron as the invoice submitted at the time of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding. She also submitted that final invoice raised by M/s. Barron on Weir was never provided to the appellant, which is also evident from the statement dated 11.6.2012 from Mr. Shihabuddeen, Manager, ICD Operation of the appellant. She also submitted that proviso to Section 46(4) requires the importer to make and subscribe to a declaration as to the truth of the contents of the Bill of Entry and to produce to the proper officer the invoice, if any, relating to the imported goods. Further, in case the importer has produced the wrong invoice and Bill of Entry is filed based on such invoice, then the said contravention is committed by the importer and not by the appellant. Therefore, penalty cannot be imposed on the appellant as the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the penalty on the appellant cannot be imposed unless there is evidence to show that the failure on the part of the appellant was on account of the mala fide intention. In support of this submission, she relied upon the following decisions: CCE vs. Prakash Freight Movers LTd. : 2012 (275) ELT 100 (Tri.-Del.) G.M. Enterprises vs. CC: 2010 (262) ELT 796 (Tri.-Mum.) D.S. Cargo Service vs. CC: 2009 (247) ELT 769 (Tri.-Del.) Syndicate Shipping Services Pvt. Ltd. vs. CC, Chennai: 2003 (154) ELT 756 (Tri.-Chennai) A.N. Bhat vs. Collector of Customs: 1991 (55) ELT 580 (Tri.) 4.3 Further, she submitted that the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were supplied by M/s. JMD India, the appellant has filed Bill of Entry on the basis of the papers where the number of boxes were matching. There was no discrepancy found in the number of boxes at the time of landing of the goods. The CHA was not aware about the weight of the goods. Only later stage, it was found that the goods are having different weight. The importer has not disclosed the weight of the goods to the CHA. When it is so, then CHA cannot be penalised. Hence, we set aside the impugned order and cancel the penalties. 6.1 In the case of HLPL Global Logistics Pvt. Ltd. cited supra, the Division Bench of this Tribunal in the case of CHA has held in para 4 as under: 4. After hearing both the sid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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