9911796707
TMI Blog2023 (9) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been engaged as authorized CHA by M/s. S.D. Commotrade International vide letter dated 01.10.2012 signed by one Mohammed Asgar said to be proprietor of M/s. S.D. Commotrade International. They contend that even prior to the issuance of the authorization letter they were approached by one Shri Raj Kumar Kothari and his business partner Shri Vinod Lachwani regarding import of Calcium Carbonate and that they had come to know of Mohammed Asgar only through an authority letter which was given to the appellant alongwith all requisite documents for import and movement of the container to the CFS by Shri Raj Kumar Kothari. Subsequently, they sought for KYC documents related to Mohammed Asgar through Shri Raj Kumar Kothari. The Bill of Entry was filed for the subject import of Calcium Carbonate with the DEPB Group on 01.11.2012 and was assessed on the next day. They add, that, as the clearance of goods warranted ADC's, NOC, they had sent an e-mail on 03.11.2012 at 10.23 A.M to the importer seeking the ADC NOC related papers duly filled alongwith the original copy of the certificate of origin. The appellant submits that in response, vide an email on the very day at 12.45 P.M they received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Ahmed Sheet, Kolkata. 6.1. For greater clarity of the factual matrix, it is necessary to advert to the following para of the notice: "18. (f) Shri Ajay Kumar Singh, partner and main person of Babhravi Exim Services (CHA) though claimed in his statement dated 07.11.2012 that his firm was engaged as authorized Custom House Agent by M/s. S.D. Commotrade International having been authorized by one Md. Asgar stated to be the proprietor of the said firm under an authorization letter dated 01.10.2012, but it appears that he knew everything about the consignment in question. He stated in his statement dated 07.11.2012 that he was first contacted by Shri Raj Kumar Kothari who approached him directly at the Custom House Agent's hall on or around 14th or 15th June 2012. Since that date up to the end of September 2012, the said job was discussed by him two/three times with Mr. Vinod Lachwani and Mr. Raj Kumar Kothari at their office situated at 110A, Muzaffar Ahmed Street, 4th floor, Kolkata-700016. He also stated that during their discussion both Mr. Lachwani and Mr. Kothari always impressed upon him that the item to be imported was Calcium Carbonate but those two persons never mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter assessment of the bill of entry on 2nd November. He refers to the copy of their letter dated 01.11.2013 addressed to the Safety Officer, Kolkata Port Trust requesting to indicate the nature of the goods, whether hazardous or non hazardous and advert to the Safety Officer's reply thereon that the goods Calcium Carbonate as non-hazardous. The appellant further contended that subsequently they received on 06.11.2013, a communication from Mohammed Asgar, proprietor of M/s. S.D. Commotrade International, stating that they had received a phone call from their foreign seller that by mistake wrong containers were shipped and they were thus constrained to abandon and relinquish the title to the goods hence, they sought to re-call the bill of entry. 8. For better appreciation of the legal position, it would be appropriate to dwell into Section 112 and Section 114AA. The same are thus indicated below: "112. Penalty for importer importation of goods, etc. -Any Person,- (a) Who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or (b) Who acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty under Section 114AA, the appellant cannot be subjected to such a penalty, howsoever grave the case be. We are thus convinced that to the extent of imposition of penalty under Section 114AA of the act, the impugned order is bad in law and cannot be sustained. 10. Scrutiny of the evidence on record, the circumstances, repeated meetings between Raj Kumar Kothari and Vinod Lachwani with the appellants and all related facts only point to one thing that Shri Ajay Kumar Singh was contacted and handed over the stipulated job of clearance by Shri Raj Kumar Kothari and Shri Vinod Lachwani, and not the alleged actual importer. This is even though the importation of the consignment was being discussed with the appellants from the middle of June 2012 and had been so done two/three times in past, finally materializing only during the month of November 2012. Given this factual input, and as a CHA aware of the day to day transactional requirements and clearance practices coupled with their obligations under the statute is sufficient enough to dispel the theory of being fooled and led into the aforesaid innocently. The import of Calcium Carbonate was discussed by the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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