TMI Blog2001 (8) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... d. on actual user basis under Open General Licence. The imported goods, on physical verification, were found to be old and used ones and on that basis, a case of mis-declaration was framed against the aforenamed importer and a case of connivance with such mis-declaration was framed against the present appellant (CHA) by the Department and, accordingly, show cause notice (SCN) was issued to them. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... events relevant to the case. Accordingly, the appellants received an advance set of documents from the importer under cover of letter dated 8-8-1997. Those documents included copies of airway bills, invoice, packing list, IEC code letter etc. On the basis of such documents, the CHA prepared the Bill of Entry and filed the same with the Custom House. On 19-8-1997, the Bill of Entry was noted and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f origin of the goods was available to them. It was those documents which indicated the second-hand nature of the goods. Therefore, at the time of filing the Bill of Entry, the second-hand nature of the goods was not known to the appellants. The findings to the contrary recorded by the Deputy Commissioner and the Commissioner (Appeals) are contrary to the factual position and, therefore, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, it is incumbent on the Departmental authorities to record a finding in the first instance that some commission or omission of the CHA had rendered the goods confiscable. Such a finding is not forthcoming in the order of the Deputy Commissioner or that of the Commissioner (Appeals). In the absence of such a finding, penalty cannot be imposed under Section 112(a) of the Act. The adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter, they have only acted in a bona fide manner and not otherwise. There is absolutely no evidence of any incriminating conduct, in this case, as against the CHA. Therefore, on the facts and evidence also, there is no case for imposing any penalty on the CHA. 7. In view of what has been discussed above, the orders passed by the lower authorities as against the present appellants cannot be sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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