TMI Blog2023 (7) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... le and liable to be set aside. The Gujarat High Court in the case of PRAVIN N. SHAH VERSUS CESTAT [ 2012 (7) TMI 850 - GUJARAT HIGH COURT ], wherein it clearly states that once a Firm is penalized, separate penalty not imposable on the partner. The penalties imposed on the CHA Firm as well as its Partner Vivek Banka, under Section 112(a) of the Customs Act, 1962, not sustainable - Appeal allowed. - Customs Appeal No. 75988 of 2016 Customs Appeal No. 75989 of 2016 - FINAL ORDER No. 75840-75841/2023 - Dated:- 22-6-2023 - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri Arnab Chakraborty , Advocate for the Appellant Shri S. Chakraborty , Authorized Representative for the Respondent ORDER PER : K. ANPAZHAKAN The Appellant 1, M/s Krishna Shipping Agency is a partnership Firm engaged in rendering service of a Custom House Agent in terms of the provisions of the Custom House Agent Licensing Regulations (CHALR), 2004. Vivek Banka ,the Appellant 2 was a Partner of the Appellant 1 Firm. A penalty of Rs.5,00,000/- under section 112(a) of Customs Act, 1962,was imposed on Appellants 1 and 2, vide Impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 13 has not been established as held by the Tribunal, Kolkata in the order dated 15.09.2016. Hence, they contended that the penalty imposed on them under Section 112(a) of the Customs Act, 1962, is not sustainable. 5. The Ld. A.R stated that the Appellants have colluded with the importer in the importation of the misdeclared goods. Hence, he contended that penalty has been rightly imposed on the Appellants under Section 112(a) of the Customs Act, 1962. 6. Heard both sides and perused the appeal records. 7. We observe that the present appeal is on a narrow compass of imposition of penalty on the CHA and its Partner Vivek Banka under section 112(a) of the Customs Act, 1962, in the impugned order dated 11.03.2016. The Appellants stated that the adjudicating authority has imposed penalty on them under Section 112(a) of the Customs Act, 1962 on the misconceived notion that they have deliberately dealt with the fraudulent documents on behalf of the importer. The findings of the adjudicating authority against the Appellants in the impugned order is reproduced below: 12. Shri Vivek Kumar Banka, Partner of the CHA firm M/s Krishna Shipping Agency was examined on 11.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for two containers. Thus, I hold that they acted in a manner, which is contrary to the provisions of the CHALR 04 and their acts of omissions and commissions has abetted M/s Prince International in the proper importation of mis-declared goods in the said three containers, therefore, for their acts of omissions and commissions, they are liable to penalty under Section 112 (a) of the Act. 52.4. I also find that Shri Vivek Kumar Banka, as the Partner of M/s Krishna Shipping Agency, had negotiated with Sri Sunil Kumar, Proprietor of M/s Prince International. As Sri Banka dealt with the transaction with the importer, I find that he was required to verify the authenticity of the documents sent by Sir Sunil Kumar before presenting then to the Customs authorities. I also find that Sri Banka stated that they had received two set of documents, one by courier other by e-mail and filed Bills of Entry on the basis of electronically received scanned copies of the unsigned documents and not the original ones through courier. I also find that all three bills of entry were filed on strength of such fraudulent unsigned documents; therefore, I hold that Sri Banka as the partner of the CHA fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional Central Excise authorities. The exporter is also existing. Bills of entry and shipping bill were filed by the appellants based on the documents furnished by the importer/exporter. If there was any irregularity in the documents then the same was also available before the assessing officers and the Customs examining officer. If the same could not be detected by the appellant the same also could not be detected by departmental assessing/examining officers. There is no evidence on record that appellant came to know of any irregularity before the same were detected by the department or that he did not advise the concerned clients. Appellant was also exonerated by the departmental inquiry officer. It is also observed that the points of difference from the Inquiry report are not so glaring to justify revocation of CHA license as held by the adjudicating authority. The whole spirit of obligation of the CHA under the CHALR is to establish the indentity of the importer/exporter and appropriately advise his clients which in the present proceedings are existing and reasonable steps were taken by the appellant to comply with Regulations 13(a), (d) and (o) of CHALR. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm, no separate penalty can be imposed on its partner. We agree with the view taken by the Division Bench. Therefore, we find force in the submission of the learned counsel for the appellant and the question is answered in the negative, in favour of the assessee and against the department. The appeal is allowed. Penalty imposed on the appellant is set aside . 12. We observe that the above decision of the Hon ble Gujarat High court clearly states that once a Firm is penalized, separate penalty not imposable on the partner. 13. Following the above decision of the Hon ble Gujarat High Court , we hold that the penalty imposed on the partner Vivek Banka is not sustainable, since separate penalty has already been imposed on the Partnership Firm, in the impugned order. There is no penalty imposable on the Appellant 1 CHA firm in view of the findings of the Tribunal in the order dated 15.09.2016. Accordingly, we hold that the penalties imposed on the CHA Firm as well as its Partner Vivek Banka, under Section 112(a) of the Customs Act, 1962, not sustainable. 14. In view of the above discussion, we allow the appeals filed by both the Appellants 1 and 2. ( Pronounced in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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