TMI Blog2004 (1) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... /- has also imposed penalties on various other persons. In the present appeal I am concerned with the imposition of penalty on the appellants herein, the Customs House Agent. 2. The brief facts of the case required for deciding this appeal is that the appellants are a CHA Company. The charge against the appellants is that one Basheer of Sri Lanka had entered into a conspiracy along with the importer M/s. World Wagon Agency, the proprietor of which is one PV Shyam Kumar, and the CHA, to smuggle cigarette into India and it was the CHA who introduced the importer to Shri Basheer and that the CHA informed the fact of 100% examination of the goods to the importer after filing the Bill of Entry who in turn alerted the said Basheer and by doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original Bill of lading of the above container. On receipt of this letter from the supplier the importer wrote to the Deputy Commissioner of Customs, Chennai that they have surprisingly been informed and they have also received a fax from the supplier on 24-6-2003 stating that the container was wrongly shipped to them which was supposed to have been shipped to Spain. They also informed the Deputy Commissioner that since the consignment is not as per their order, they have requested the Customs Authorities to allow them to re-ship the same to the supplier. Simultaneously the importer wrote to the supplier that the Customs in Chennai wants certain documents from them for allowing re-shipment of the above-mentioned container vide their letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escaping penal action. The learned Counsel submitted that there is no involvement of the CHA in smuggling of the cigarettes and the introduction of the importer by one Shri Basheer known to them does not conclusively prove that they had the knowledge about smuggling of the goods and they were abetting the commission of offence committed by the importer. He has further submitted that CHA and the supplier had already requested for re-shipment of the consignment accepting the mistake in handling at their end, immediately after the filing of the Bill of Entry even before the 100% examination of the consignment. The learned Counsel also relied upon the judgment rendered by the Hon'ble Apex Court in the case of Shri Ram another v. State of UP r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired under the aforesaid Regulations and when there is no evidence on record or to suggest that the CHA had played any active role in attempting to export prohibited goods, no penalty can be imposed. He has also invited my attention to decision of the CEGAT, North Regional Bench in the case of P.S. Bedi Co. v. CC, reported in 2001 (133) E.L.T. 86 wherein also it was held that no penalty under Section 112(a) can be imposed on the CHA when there is no finding that commission or omission of the CHA had rendered the goods confiscable. He has also invited my attention the order No. 1094/2003, dated 23-12-2003 [2004 (165) E.L.T. 97 (T)] of this Tribunal in the case of U. Sivasubramanian wherein in similar facts and circumstances, penalty on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Shri Ram another v. State of UP (supra) has held that in order to constitute abetment, the abettor must be shown to have "intentionally" aided to the commission of the crime. In the present case no evidence has been brought on record to show that the CHA had intentionally aided or abetted the commission of offence by the importer. The various other judgments including the one of this Bench vide Final Order No. 1094/2003, dated 23-12-2003 [2004 (165) E.L.T. 97 (T)] cited and relied upon by the learned Counsel apply to the facts of the present case. 6. In view of the above discussion and finding, I am of the considered opinion that the Revenue has failed to bring home the charge against the appellants. I therefore, set aside the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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