TMI Blog2022 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... o facilitate the commission of offence, the finding of the Commissioner (Appeals) that the appellant has facilitated the attempt to smuggle red sanders is without any factual and legal basis and cannot sustain. The order passed by the Commissioner (Appeals) is without correctly appreciating the facts or the provisions of the law - Appeal allowed - decided in favor of appellant. - Customs Appeal No.40045 of 2021 - Final Order No. 40117 / 2022 - Dated:- 8-3-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) AND Shri P. Anjani Kumar, Member (Technical) Shri Derrick Sam, Advocate for the Appellant Shri R. Rajaraman, AC (AR) for the Respondent ORDER The appellant is aggrieved by the order passed by the Commissioner (Appeals) who remanded the matter to the adjudicating authority directing to reconsider the non-imposition of penalty under sec. 114 and 114AA of the Customs Act, 1962. 2. Brief facts are that the Directorate of Revenue Intelligence, Chennai Zonal Unit gathered specific intelligence that attempts were made to smuggle red sanders from Chennai Port in consignment covered under Shipping Bill dated 2.5.2018 in the name of M/s. Universal Concrete Technol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the Customs Broker in their reply to the show cause notice that they had verified the IEC and obtained authorisation from the exporter before taking up the filing of first shipping bill in the name of M/s.Universal Concrete Technology was true as they had admitted that they have no contact with the exporter and the Shri I.Mahimai David was doing all the transactions with the exporter. From the evidence on record, it is clear that the Customs Broker had merely processed the shipping documents received from Shri I.Mahimai David and prepared check list and finally filed the shipping bill without bothering to verify the correctness of the documents they handled. Had they verified the existence of the exporter at the time of filing the shipping bill, the impersonation act of Shri Rajesh would have come to light and the attempted illegal export of red sanders could have been detected. By their action of not verifying they failed to discharge the obligation cast on them under the Regulations 11 (a), 11 (d) and 11 (n) of the Customs Brokers Licensing Regulations 2013. I observe that this action of the Customs Broker of not obtaining authorisation from the exporter and not cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had not obtained authorization directly from the IEC holder. There is no allegation or any evidence furnished by the department that the appellant had directly participated in the misuse of IEC or attempt to smuggle prohibited goods. When there is a categorical finding by the adjudicating authority that the appellant had no role in the attempted smuggling activity, the Commissioner (Appeals) ought not to have held against the appellant. The order passed by the Commissioner (Appeals) is based on assumptions and presumptions only. 7. The learned counsel submitted that the allegations if at all would come under the Customs Broker Regulations only for which penalty cannot be imposed under sec. 114 / 144AA of the Customs Act, 1962. The appellant had filed shipping bill on behalf of M/s. Universal Concrete Technology, Coimbatore. The required documents were received from Shri Mahimai David which is accepted and admitted by the said person. In para 31 of the Show Cause Notice, the allegation against the appellant is as to why penalty should not be imposed for contravention of Regulations 11(a), (d) and (n) of CBLR, 2013. Although the contravention is violation of CBLR, 2013, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. and Shri Mahimai David had undertaken clearance for 8 shipments without obtaining authorization of M/s. Universal Concrete Technology and by not verifying the authenticity of M/s. Universal Concrete Technology and therefore liable for penalty under section 114 of the Customs Act, 1962 read with Section 50 of the Customs Act, 1962 and Shipping Bill (Electronic Integrated Declaration) Regulations, 2011. *** ***** ***** *** (aa) M/s. Hera Shipping Solutions Pvt. Ltd. Customs Broker by filing Shipping Bill in the name of M/s. Universal Concrete Technology without authorization from the exporter in contravention of Regulation 11(a), 11(d) and 11(n) of Customs Brokers Licensing Regulations, 2013, and Shipping Bill (Electronic Integrated Declaration) Regulations, 2011 read with Section 50 of the Customs Act, 1962 is liable for penalty under section 114AA of the Customs Act, 1962. It can be seen that the allegations are that appellant has contravened the Regulations under 11(a), (d) and (n) of CBLR, 2013. For the above contraventions, the proposal is to impose penalty under section 114 and 114AA of the Customs Act, 1962 r/w section 50 of the Act ibid. 14. In par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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