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TMI Blog2022 (6) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... be found. A mahazar was prepared and forest officers were informed who conducted inspection of the wooden logs and reported them to be 'red sanders'. The officers worked out the market value of the red sanders seized to be Rs.5,28,75,000/- @ Rs.45 lakhs per MT. The container used to carry the red sanders logs for illicit export was also liable for confiscation. Summons were served to different persons and the statements were recorded. 2. Pursuant to the investigations, show cause notice under Section 124 of the Customs Act, 1962 dated 18.12.2018 was issued to various persons including the appellant herein (Customs Broker), who had filed the shipping bill for export of the consignment. After due process of law, vide Original-in-Original dt. 31.05.2019, the adjudicating authority held that there is no evidence that the appellant has abetted the smuggling plan and therefore dropped the proposal to impose penalty under Section 114 (i) of the Act ibid. Against such order, the Department filed appeal before the Commissioner (Appeals) who vide the order impugned herein set aside the order passed by the adjudicating authority as far as it relates to non-imposition of penalty on the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward by the department and this has resulted in grave injustice to the appellant. 3.3 On merits of the case, Ld. Counsel adverted to para-42 of the order passed by the adjudicating authority and submitted that there is clear finding that there is no evidence in the show cause notice to prove that the appellant has abetted the illegal export of red sanders. It is stated by the adjudicating authority that at the most, the violation would fall only under Customs House Agents' Licensing Regulations (CBLR), 2013 for which imposition of penalty under Section 114 of the Customs Act, 1962 is not warranted. In the impugned order, the Commissioner (Appeals) has held that the appellant has filed two shipping bills with serious misdeclaration of description and has also misused IEC of M/s.Polyhose India (Rubber) Private Ltd. without verifying the KYC and antecedents of the exporters; that therefore they are liable for penalty under Section 114 for having acted in a careless and reckless manner; that such omission and commission attracts penalty under Section 114 of the Customs Act, 1962. With these observations, the matter has been remanded to the adjudicating authority. Ld. Counsel submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) has only remanded the matter and the appellant has ample opportunity to establish their innocence before the adjudicating authority. He prayed that the appeal may be dismissed. 5. Heard both sides. 6. The foremost argument put forward by the counsel for appellant is that the review order passed by the Review Cell dated 03.09.2019 is barred by time and therefore the appeal filed by department before Commissioner (Appeals) is also barred by limitation. For better appreciation, the relevant clauses of Section 129D of the Customs Act, 1962 are reproduced as under : "SECTION 129D. Powers of Committee of Principal Chief Commissioner of Customs or Chief Commissioner of Customs or Principal Commissioner of Customs or Commissioner of Customs to pass certain orders. - .... ..... ....... (2) The Principal Commissioner of Customs or Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner (Appeals). From the records, it is seen that department has filed a letter on 09.11.2020 informing that the grounds of appeal filed by the department may be taken on record as arguments for the department. In such case, it cannot be said that department has to appear in the online hearing. From the discussions made in the impugned order also, it is not seen that any new grounds were taken up by the department other than what they have stated in their grounds of appeal. Though I should say that such conduct of hearing where both parties are not present at the same time is irregular and not proper, I do not find any prejudice caused to the appellant herein as the department has already informed that they are not putting forward any grounds other than what they have stated in the grounds of appeal. The argument put forward appears to be untenable and hyper-technical. 9. The Commissioner (Appeals) has set aside the order passed by the adjudicating authority and remanded the matter to look into the issue of imposing penalty under Section 114 (i) of Customs Act, 1962. The Counsel for appellant has argued that there is a clear finding by the adjudicating authority that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the role of Customs Broker in such smuggling activity. In one such case, viz., Commr of Customs (Exports) Vs. I. Sahaya Edin Prabu - 2015 (320) ELT 264 (Mad.), the Hon'ble Tribunal held for failure to discharge as a Customs House Agent penalties are provided in the Customs House Agents Licensing Regulations and imposition of penalty under Sec. 114 of the Customs Act, 1962 is not warranted. The said decision of the Hon'ble CESTAT was also upheld by the Hon'ble High Court of Madras by its Oder dated 8.1.2015. Applying the ratio, I hold that Shri K. Katuraja, the Authorised Signatory of M/s.Behag Overseas, of Customs Broker is not liable for penalty under Sec.114 of the Customs Act, 1962." 12. The Hon'ble High Court in the case of Sri Rama Thenna Thayalan (supra) had an occasion to consider similar set of facts wherein there was an attempt to smuggle red sanders. It was held that it is incorrect to say that CHA is only liable under CBLR for such violations. The relevant paras of Hon'ble High Court's decision are reproduced as under: "17. The plea that action against the erring Customs House Agent can be initiated only as per the procedure under CHALR 2004 and not un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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