TMI Blog2004 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were delivered to the nominee of the Importers. No irregularities have been noticed in these consignments and the importers have not been initiated with proceedings by the department. 3.The present case relates to the re-import of alleged exported goods. At the behest of Shri Durai, Shri Arokiaraj obtained the delivery order from the Airlines Authorities and the moment he came to know that the cargo has been detained by the customs authorities and apprehended problems with this cargo, he returned all the documents to Shri Durai Srinivasan. For the above incident he was asked to give statements and the first statement was made by Shri Arokiaraj on 4-4-2002 and later appeared whenever he was called. In his statement dated 4-4-2002 Shri Arokiaraj has stated inter alia that he had cleared five consignments for M/s. Saravana Exports, three through Chennai Air Cargo Complex and two through Chennai Sea Port; that one Durai of M/s. Sumi Supertech had given the import documents for these consignments; that he knew Durai for the past one year; that Shri Durai had told that M/s. Saravana Exports belonged to his friend and had requested him to clear the consignment; that at Air Cargo Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . With regard to Shri Arokiaraj, CHA, it is difficult to believe that he undertook the job of clearance of goods for M/s. Saravana Exports, without ever meeting the owner of the company, the importer, just because Shri Durai, his friend had told him to do the Customs clearance job for them. It is also unbelievable that the CHA after clearance of the goods in the past has been handing over the goods only to Shri Durai and not to the importer. As a licenced CHA, Shri Arokiaraj is required to verify the bona fide of any person approaching him for customs clearance work, particularly when he has done the job on four or five occasions earlier for the same person, without meeting him and handing over the goods to another person, etc. Therefore, it is clear that Shri Arokiaraj was aware of the nature of the goods being imported and the offence committed and he has, therefore, abetted Shri Kasirajan in the illegal act. Therefore I hold him liable to penalty under Section 112(b) of the Customs Act, 1962." 5.Ld. Advocate and ld. Consultant submitted that the ld. Commissioner in his findings has held that with regard to Shri Arokiaraj, CHA it is difficult to believe that he undertook the jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abetter happens to facilitate the commission of crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of Section 107 of the IPC, 1860. They also pressed into service the judgment rendered by the Tribunal in the case of A.N. Bhat v. CC - 1991 (55) E.L.T. 580 wherein it has been held that for imposition of penalty on clearing agent it is not sufficient if he acted with negligence and when clearing agent had no knowledge about the illegal acts of the exporters, he could not be imposed penalty under Section 114 of the Customs Act, 1962. Ld. Advocate submitted that the clearing agent has not been held to be having any positive knowledge about any illegal acts of the importer. Ld. Advocate also invited my attention to the judgment rendered by the Tribunal in the case of Liladhar Pasoo Forwarders Pvt. Ltd. v. CC, Mumbai - 2000 (122) E.L.T. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the part of the CHA, or that he was an accomplice or abetter under Section 117 of the Customs Act, 1962. They, therefore, prayed that in the absence of any conclusive evidence against the CHA that he had abetted the commission of offence by the importer penalty is required to be set aside since the penalty has been imposed purely based on assumption and presumption that he had abetted the crime. They, therefore, prayed for allowing the appeal with consequential relief, as per law. 6.Appearing on behalf of the Revenue Shri C. Mani, JDR submitted that the CHA has violated the Custom House Agent Licensing Regulation Act, (CHALR) 1984 inasmuch as he has not fulfilled the obligation of dealing with the importer directly as could be seen from his own statement dated 4-4-2002 and as admitted by him that he did not know the importer or the importer-company viz. M/s. Saravana Exports. Investigation also revealed that there is no company by name of M/s. Saravana Exports. He further submitted that Kasirajan, the supposed owner of M/s. Saravana could not be located by the customs authorities and M/s. Saravana Exports is also a fictitious firm. He further submitted that the CHA had col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Order-in-Original. The penalty has been imposed under Section 112(b) of the Customs Act on the charge of abetting Shri Kasirajan, the importer. 8.In counter, Shri C. Mani, JDR invited my attention to provisions of Rule 14(a) of the CHALR, 1984 which provides that a CHA shall obtain an authorisation of each company/firm/individual by whom he is for the time being employed as a CHA. Since the CHA did not get the authorisation and did not even know anything about the importer or the company for whom he was engaged, he has therefore been rightly imposed penalty under Section 112(b) of the Customs Act. Shri C. Mani, JDR also invited my attention to the judgment rendered by the Tribunal in the matter of V. Abdul Rahman Musaliya v. CC - 2001 (133) E.L.T. 145 wherein it has been held that penalty can be imposed under Section 112(b) of the Customs Act, 1962 on the CHA. He therefore prayed that the order of imposition of penalty may be upheld by rejecting the appeal filed by the appellant, Shri Arokiaraj. 9.At this stage, when arguments for nearly two hours had taken place and when I was about to dictate the order in the open Court, Shri C. Mani, JDR pressed into service the Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was issued internally by way of guidance of Members/Registry and copy of the same has not been marked to the Board/Trade/Chief Departmental Representative. This office order also does not specifically set out anything, that matter relating to imposition of penalty on CHA has to be dealt with by Division Bench. Moreover, after issue of this Office order in 1998, cases involving identical issues are being decided by Single Member Bench by various co-ordinate Benches of the Tribunal throughout the country including this Zone and it is only when the issue of suspension or cancellation of liencnce is involved, such matter is posted before the Division Bench and not otherwise. Before I proceed to decide the case on merits, it is, therefore, necessary to decide the question of jurisdiction raised by the JDR. Therefore, let me first decide this question as it goes to the root of the matter. Section 129C(4)(c) of the Customs Act, 1962 stipulates that where the fine imposed or penalty involved does not exceed Rupees ten lakhs, Single Member is competent to decide the appeal. In the present case, the penalty imposed on the appellant is Rs. 2,50,000/- under Section 112(b) of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, hold that Single Member has the jurisdiction to hear all cases of imposition of penalty including penalty imposed on the Customs House Agent subject to the limitation laid down under Section 129C(4)(c) of the Customs Act, 1962. However cases involving suspension/cancellation of CHA licence alone are required to be heard by a Division Bench. 12.Having decided the question of jurisdiction, I now proceed to decide the case on merits based on the arguments and counter arguments advanced before me. As rightly contended by the learned Counsel/Consultant for the appellant, in this case the issue to be decided is legality or otherwise of the penalty of Rs. 2,50,000/- imposed on the appellant. There is no suspension/cancellation of the licence of the CHA. Admittedly CHA has also not filed any Bill of Entry in the present case. Further, I find that the learned Commissioner has recorded a finding that "it is difficult to believe that he (CHA) undertook the job of clearance of goods for M/s. Saravana Exports without ever meeting the importer.....It is also unbelievable that the CHA after clearing the goods in the past has been handing over the goods only to Shri Durai and not to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri.-Del.) decided by a Single Member Bench, it was held that when there was no evidence of any incriminating conduct against the CHA, no penalty could be imposed on the CHA. In the case of M/s. Syndicate Shipping Services (P) Ltd. v. CCE reported in 2003 (154) E.L.T. 756, it was held that no penalty is imposable on the CHA when there is no positive evidence on record to show any mala fide intention on the part of the CHA. In another appeal in the case of M/s. Syndicate Shipping Services (P) Ltd. v. CC (Imports), Chennai decided on 9-1-2004 vide Final Order No. 68/2004 [2003 (154) E.L.T. 756], it was held that introduction of a middle man and arranging meeting between importer and the middle man is the normal practice and that by itself could not lead to a conclusion that the CHA was involved and was privy to the commission of offence committed by the importer in the absence of any positive evidence to that effect. In the face of the finding recorded by the Commissioner as extracted under Para 4 above and in the light of the law laid down by the Hon'ble Supreme Court, and the various decisions of the Tribunal as noted above, I am of the considered opinion that the Revenue has failed ..... 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