Kaushal Mathur G Card Holder vs Cc-Jodhpur

[Arising out of order-in-appeal no. 02-03 (OPD) CUS/JPR-II/2014 dated 30/01/2014 passed by Commissioner of (Appeal) Jaipur-II, NCR Building, C-Scheme, Jaipur-302005]

For Approval and Signature

Honble Shri Ashok Jindal, Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

M/s. Pink City Logistics Ltd.

Kaushal Mathur G Card Holder Appellant

Vs.

CC-Jodhpur Respondent

Appearance: Ms. Sikha Sapra, Advocate for the appellant

Shri R.K. Mishra, DR for the respondent.

Coram: Honble Shri Ashok Jindal, Member (Judicial)

Final Order No. 52525-52526/2015

Per: Ashok Jindal

Appellants are in appeals against the impugned order confirming the penalties of Rs. 20 thousand and Rs. 5 thousand respectively under Section 114 of the Customs Act, 1962.

2. The facts of the case are that the appellant no. 1 is a CHA and appellant no. 2 is a G-Card Holder of the appellant no. 1. On 17/10/2012, appellant no. 2 filed Cargo for export of Ganesha Ideal on behalf of the exporter M/s. Maharani Arts Exporter-Jodhpur. As there was an alert that some Gods/Goddess items are being smuggled by stolen from the Hindu Temples, therefore, consignments were put to 100 per cent examination and on examination, instead of Ganesha Idol, there is a common wooden male and female statue in obscene position was found. So, goods were detained and subjected to fixation as goods are being perused for export. The appellants waived the show cause notice and contested that they were having no knowledge of the mis-declaration done by the exporter. Therefore, they have nothing to do with the export of the same. Adjudication took place, penalty of Rs. 50 thousand and 10 thousand respectively was confirmed by the Adjudicating Authority. On appeal, the Commissioner (appeal) reduced the penalty to 20 thousand and 5 thousand respectively.

3. Aggrieved from the said orders, appellants are before me.

4. The ld. counsel for the appellants submits that appellants were having no knowledge of mis-declaration of goods by the exporter. They only came to know at the time of 100 per cent examination. In the absence of any knowledge by the appellants, penalty cannot be imposed as held by this Tribunal in the case of Prime Forwarders Vs. Commr. of Customs, Kandla reported in 2008 (222) ELT 137 (Tri-Ahmd).

5. On the other hand, ld. AR submits that the appellants should be vigilant and they were required to advice their client/exporters to declare correctly the item in question. Therefore, penalties have rightly been imposed on the appellants for their negligence. If the goods have not been examined, the issue of declaration could not have come in the light of the department.

6. Heard both the sides and considered the submissions.

7. In this case from the facts, it is not clear whether the appellants were having any knowledge of mis-declaration of impugned goods by the exporter or not. In fact, letter written by the exporter is also on record wherein he has stated that the container containing Ganesha statue have been exchanged with the statue in question. Further, I observed that no action against the appellants under CHALR 2004 has been inititated.

8. In these circumstances, there is no corroborative evidence on record to alleged that appellants were having prior knowledge of mis-declaration of goods, penalty is not imposable as held by this Tribunal in the case of Prime Forwarders (Supra) wherein this Tribunal has held that As regards, penalty on M/s. Prime Forwarders, customs house agent, no evidence of their involvement or their knowledge about mis-declaration has been brought on record. The Commissioner has observed that being a responsible CHA, he should have informed the correct description of the goods. However, we find that the said CHA has acted on the basis of the documents given to them and there is nothing to show that he was aware of the containers being stuffed with Ferro Titanium instead of brass scrap. As such we find no justification for imposition of penalty upon the said appellant.

9. In these terms, I set aside the imposition of penalties on the appellants. Consequently, appeals are allowed with consequential relief, if any.

(Dictated and pronounced in the open court)

(Ashok Jindal)

Member (Judicial)

Ritu

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