TMI Blog2020 (9) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... h in cash, is not the representative of the CHA firm, and is an outsider. Thus, receipt of ₹ 1 lakh by Shri Rohit Sharma or Shri Rakesh Sagar is not the amount received by the appellant CHA. Further, it is found that the Prop. of the exporter firm and its Authorised Signatory have nowhere stated that they have paid any amount over and above usual charges to the appellant CHA. Further, there is no allegation of any flow back of ill gotton draw back money to the appellant CHA - Further, it has nowhere come on record that CHA was present at the time of packing and stuffing of container for shipping. Further, there is no allegation that CHA has cooked or concocted any document for presenting it to the Customs, knowing it to be false ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has been working efficiently and diligently as a Customs House Agent since 1985 and have clear antecedents. In more than about 34 years of work, the appellant does not even have a single complaint against him. The Commissioner of Customs (Appeals) has failed to take cognizance of the clear antecedent and faultless conduct of the appellant. Therefore, the finding of the Commissioner (Appeals) is erroneous and perverse. One Shri Rakesh Sagar used to bring work to the appellant. He was just a middleman who connected the exporter with the CHA for the purpose of clearance of goods. He was a freelancer and used to bring clients for other CHA s as well. He was never an employee of the appellant and neither his name was mentioned in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the penalty upheld by ld. Commissioner of Customs (Appeals) is based on erroneous and ill-founded ground. It is denied that the CHA had ever taken ₹ 1 lakh over and above their usual charges. The original authority imposed penalty of ₹ 1,00,000/- under the provisions of Section 114 and also imposed penalty of ₹ 1,00,000/- under the provisions of Section 114AA of the Customs Act, 1962 on the appellant, for the alleged acts of omission and commission. Being aggrieved, the appellant had filed appeal before the Commissioner (Appeals), which was rejected. 5. Learned Counsel for the appellant submitted that he is supposed to look into genuineness of exporter from IEC No. etc. which was produced by the exporter, that appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s necessary to initiate proceedings against the appellant accused as held by the Hon ble Supreme Court in Vinod Solanki vs. Union of India (2008) 16 SCC 537 and Noor Aga vs. State of Punjab and Anr -2008 (56) BLJR 2254; Criminal Appeal No. 1034 of 2008 (arising out of SLP (Crl.) No. 5597 of 2006, which is missing in the present case. 9. Ld. Commissioner has completely disregarded Section 138A of Customs Act, 1962, as the appellant has been penalised merely on the basis of preponderance of probability. He has not been able to assign any motive or knowledge of cheap quality RMG, MMG and ladies blouses to the appellant, beyond reasonable doubt. He urges that the Commissioner has completely ignored the facts while passing the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , over and above the usual charges. Shri Rakesh Sagar have stated that he was to receive ₹ 4,000/- on bill and remaining amount of ₹ 1 lakh in cash, is not the representative of the CHA firm, and is an outsider. Thus, receipt of ₹ 1 lakh by Shri Rohit Sharma or Shri Rakesh Sagar is not the amount received by the appellant CHA. I further find that the Prop. of the exporter firm and its Authorised Signatory have nowhere stated that they have paid any amount over and above usual charges to the appellant CHA. Further, there is no allegation of any flow back of ill gotton draw back money to the appellant CHA. I further find that the consignment under seizure was to be exported to Dubai for which as per the inspection norm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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