SINDHU CARGO SERVICES LTD. Vs. CC

JUDGEMENT

(1.) AFTER examining the records and hearing both sides, I find that appeal itself can be finally disposed of at this stage. Accordingly, after dispensing with predeposit, I take up the appeal.

(2.) THE appellants qua Customs House Agent for M/s. Arul Baghya Textiles (Exporter) had filed a Shipping Bill dated 20.8.2005 for export of readymade garments (100% Cotton Knitted Polo Shirt for Men) to UAE. The declared value of the goods was Rs. 5,27,483/ - @ US$ 6.5 per shirt. The export was under claim for drawback. The officers of Customs, having developed doubts regarding the quality of the goods, got it examined for GSM and, on the basis of the results of examination as well as the results of market enquiry, they estimated the value of the shirts at US$ 5.54 per piece. On this basis, the goods were alleged to have been overvalued for the purpose of undue drawback. After recording statements from the exporter and their CHA and completing the enquiries, the department issued a show -cause notice proposing to revise the value of the goods as above, confiscate the goods under Section 113 of the Customs Act on the ground of misdeclaration of value and impose penalties. While the penalty proposed on the exporter was under Section 114 of the Act, the one proposed on the CHA was under Sections 114 & 117 of the Act. These proposals were contested. In adjudication of the dispute, the original authority imposed a penalty of Rs. 10,000/ - on the CHA under Sections 114 and 117, apart from confiscation of the goods under Section 113 of the Act. This decision was upheld by the Commissioner (Appeals). Hence the present appeal of the CHA.

(3.) AFTER considering the submissions, I have found that the issue arising in this case is already covered by the cited decisions of the Tribunal. The Revenue has no case that the CHA was also a party to the alleged misdeclaration of value of the goods. Their function was to verify the correctness of the particulars mentioned in the Shipping Bill and the declarations attached thereto. This scrutiny was done by them with reference to the particulars borne on the relevant invoices. It is settled law that the CHA's function, in so far as the declared particulars in Shipping Bill are concerned, does not extend beyond this point. There is no evidence, on record, of the CHA having abetted the alleged offence of the exporter. In the circumstances, there is no reason to invoke Section 114 against them. As rightly pointed out by ld. counsel and as held in the case of Vetri Impex (supra), it is not open to the department to invoke Section 117 of the Act (being a residuary penal provision) inasmuch as the provisions of Section 114 were already invoked. In other words, both the provisions cannot operate together in a given case.