GAJANAN B. SUDRIK Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THERE are three appeals directed against Order -in -Original No. 113/2003/CAC/CC/SK, dated 29 -12 -2003 passed by the Commissioner of Customs (EP), Mumbai. A case of misdeclaration of export goods by M/s. Fashion Variation (Proprietor Shri A.S. Kapadia) and overvaluation thereon was detected by the Customs authorities. The goods were confiscated and penalties imposed on the exporter. In addition, penalties were imposed on Shri Suresh Dalvi, proprietor of M/s. Indian Seaways, CHA, Shri Gajanan B. Sudrik, employee of the CHA firm and another person Shri Manohar S. Anchan for their alleged involvement in the transaction. Hence the appellants are before us aggrieved by the said order. The learned Counsel for Shri Suresh Dalvi and Gajanan B. Sudrik submits that he was only a CHA for the transaction of exports undertaken by M/s. Fashion Variation. They were not concerned with the misdeclaration or over -valuation of the goods. However, the adjudicating authority has concluded that he, being an agent of the exporter, provisions of Section 147 are attracted and consequently he is liable for the penal consequence in respect of the fraudulent exports attempted to be made by M/s. Fashion Variation. The charge against the appellant is that he obtained the documents for the export from Shri Manohar S. Anchan and not directly from the exporter and therefore, there was gross negligence on his part in accepting the export clearance work.

(2.) THE learned Counsel submits that a similar matter came before the Tribunal in case of Aspinwall & Co. v. CCE, Tricky - : 2001 (132) E.L.T. 644 (Tri. -Chennai) and this Tribunal held that CHA cannot be held responsible for short levy of duty on the ground of having filed Bill of Entry on behalf of the importer under Section 147 of the Customs Act, 1962 and therefore, liability cannot be fastened on the CHA for wrong doing on the part of the importer. The said order was upheld by the Hon'ble Supreme Court reported in, 2002 (142) E.L.T. A80 (S.C.). Accordingly, he contends that the impugned order imposing penalty on the proprietor of the CHA firm and the employee of the CHA firm is not sustainable in law.

(3.) WE have carefully considered the submissions made by both sides. We have also perused the statements recorded from the appellants by the investigating agency. From the statement, no conclusion can be reached as to their involvement in the fraudulent transactions. All the appellants in their statements have deposed that they undertook/participated in transaction for export of goods in good faith. The CHA has also submitted the identification document such as bank opening account establishing the identity of the exporter. In these circumstances, invoking the provisions of Section 147 and deeming the CHA and his employee as agent of the exporter is clearly unsustainable in law. This Tribunal decision in case of Aspinwall & Co. (supra) affirmed by Hon'ble Apex Court also makes the position very clear. Therefore, in the absence of any evidence, linking the CHA firm or its employee to the fraudulent transaction undertaken by the exporter, and consequent imposition of penalty would not arise at all. As retards the role of Shri Manohar S. Anchan, it is evident that his role was limited to introducing the exporter to the CHA. In the statement recorded under Section 108, he has clearly stated that he has not seen the goods and, therefore, he was not aware of the nature of the goods under export. In these circumstances, no mala fide can be attributed to Shri Manohar S. Anchan as to his knowledge of the fraudulent transaction. Therefore, imposition of penalty is not warranted. Accordingly, we set aside the penalty imposed on the appellants Shri Manohar S. Anchan, Shri Suresh Dalvi, proprietor of CHA firm M/s. Indian Seaways and Shri Gajanan Sudrik, employee of CHA firm under Section 144 of the Customs Act, 1962. Thus the appeals are allowed.