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TMI Blog2021 (12) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ellaneous Appeals are taken up for final disposal and common order is passed as below. 3.Based on the specific intelligence gathered by the Directorate of Revenue Intelligence [D.R.I.] that red sanders logs were smuggled out of India in a container bearing No.VMLU 3200873 covered under Shipping Bill No.1955099, dated 09.07.2008 along with Annexure - A signed by the appellant herein. The said container was immediately recalled. However, the container, which had already sailed to Malaysia on 14.07.2008, was examined and found containing Red Sanders and therefore, sent back to Tuticorin. The same reached Tuticorin Port on 10.08.2008. The enquiry conducted revealed the fact that shipping bill was prepared in Custom House by one R.Sivaraman of M/s.Vishal Enterprises, Tuticorin. The statement of R.Sivaraman revealed that the Customs House Agents Licence of M/s.Vector Freight Forwarders was used by them for preparing the shipping bills and the container was stuffed with red sanders mis-declaring it as Coco Peat at the instance of one J.Francis Kumar, Marketing Executive of M/s.Sai Freight Private Limited, Tuticorin. The further investigation revealed that the shipping bill prepared by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted out by the authorities. While a specific finding regarding substitution of the goods by George and Muthu, the appellant, who is the Customs House Agent cannot be suspected or faulted for the said substitution. As a Customs House Agent, the appellant has nothing to do with the goods and is only concerned with the documentation of the export. While the shipping bill was duly signed by the Exporter and certified by the Superintendent of Central Excise, for the contents of the container, the Customs House Agent cannot be found guilty and the penalty imposed on him is arbitrary. The appellant left blank Annexure-A, for being used for exports, as the said Annexure - A only provides particulars regarding goods under shipment. The Customs House Agent is not liable for any mis-declaration. Annexure - A is based on other shipping documents including the invoice and the shipping bill. Therefore, for the misdeclaration or substitution of the goods in the course of transit, the Customs House Agent cannot be held liable. Section 50(2) of the Customs Act, 1962 is not applicable to the appellant, being a Customs House Agent. Similarly, there is no contravention of Customs Act by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration as to the truth of its contents. 11.Section 114(i) of the Customs Act, 1962 reads as below:- ''114.Penalty for attempt to export goods improperly, etc.- (ii) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding three times the value of the goods as declared by the exporter or the value as determined under this Act, whichever is the greater;'' 12.In these cases, the substantial questions of law raised by the appellant are as below:- ''C.M.A.(MD)No.916 of 2014:- 1.Whether the Tribunal was correct in confirming the penalty under Section 114(i) of the Customs Act, 1962 on the appellant even while the appellant has not contravened any of the provisions of the Customs Act, 1962? 2.Whether the first respondent Tribunal was correct in rendering a finding that the appellant has violated Section 50(2) of the Customs Act, 1962 while the said provision relates to declaration being made by the Exporter in the shipping bill and whether the imposition of penalty is sustained when the appellant is not the Exporter? 3.Whether the enhanced penalty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in holding that the appellant is liable to penalty under Section 114(i) of the Customs Act, when it is apparent on the face of the record that the Customs Officers have affixed their seal and certified that the container under export contained goods as declared in the shipping bill and the appellant went by the certification of the Customs Officers in presenting shipping documents for export?'' 13.The Customs House Agents Licensing Regulations, 2004 is nothing but supporting legislation passed in exercise of the powers conferred by sub-section 2 of Section 146 of the Customs Act, 1962. The role and responsibility of the Customs House Agent in case of mis-declaration of goods has to be dealt with based on mens rea to the contribution of the Customs House Agent allowing the smugglers to misuse the licence issued to him. 14.A Division Bench of this Court in almost identical facts of the case in K.V.Prabhakaran Vs. Commissioner of Customs, Chennai reported in 2019 (365) E.L.T. 877 (Mad.) [C.M.A.No.2940 of 2017, decided on 30.10.2017] has held that lending the CHA licence to a third party for usage without knowing the actual importer and the goods to be imported, is a seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.13 of CHALR imposed certain obligations on the Customs House Agent and one such obligation is to exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage and yet another obligation is to verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. 19.From the records and the own admission of the appellant, it is clear that the appellant had not discharged these obligations, which cast on him. It is a case where under the guise of Coco Peats, prohibited goods namely, Red Sanders weighing 10.760 MTs. has been transported. The DRI based on the intelligence gathered, had rescued the goods and found the Cargo was transported based on the Annexure - A containing the signature of the appellant Customs House Agent. Customs House Agent is governed by the Regulations framed by the Government in exercise of the powers conferred under the Customs Act, 1962. Therefore, misdeclaration of goods and attempt to export such goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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