2010 (4) TMI 658 - AT - Customs

Penalties Set Aside in Appeals by Clearing Agency, Individuals

The Appeals filed by M/s. Associated Clearing Agency, Shri Malay Sarkar, and Shri Khurshid Rehan were allowed, setting aside the penalties imposed on ... Penalty – Misdeclaration - out of 875 packages declared as Christmas Lights, 70 were found to be Christmas Lights and the balance of 805 packages were found to be CFL - Appraiser's statement to the effect that he has taken 10 packages at random and the same were made available for examination and there was no discrepancy - The charges collected by the CHA for their service recorded as a meagre in the Order of the Commissioner, which fact does not support the knowledge of mal-practice – No charge of connivance attributed – Dereliction of duty be dealt under CHA Licensing Regulation, 2004 – Appeal allowed Issues Involved:1. Misdeclaration of imported goods.2. Dereliction of duty by Customs House Agent (CHA).3. Role of freight forwarder in the misdeclaration.4. Role of Appraiser in the misdeclaration.5. Role of liner agency in the misdeclaration and unauthorized reshipment.Issue-wise Detailed Analysis:1. Misdeclaration of Imported Goods:The case revolves around M/s. United Traders who imported consignments declared as Christmas Lights but were found to contain a significant number of Compact Fluorescent Lamps (CFL) of Chinese origin, which were subject to Anti-Dumping Duty. The misdeclaration was discovered by the Directorate of Revenue Intelligence (DRI) upon examination of the consignments.2. Dereliction of Duty by Customs House Agent (CHA):The CHA, M/s. Associated Clearing Agency, was found to have facilitated the clearance of the misdeclared consignments. The Commissioner noted that the CHA failed to ensure proper examination of the goods, which led to the evasion of duty. However, it was also noted that the CHA only collected a meager fee of Rs. 300/- for processing the bill of entry, indicating no active involvement in the duty evasion. The Tribunal concluded that any dereliction of duty by the CHA should be addressed under the Customs House Agent Licensing Regulations (CHALR) and not under Section 112 of the Customs Act.3. Role of Freight Forwarder in the Misdeclaration:Shri Malay Sarkar, who introduced the importer to the CHA, was found to have known the importer for over 10 years. The Commissioner held that he acted at the behest of the importer and had knowledge of the misdeclaration. However, the Tribunal found that the charges against him were based on presumptions and not on concrete evidence. Therefore, the penalty imposed on him was set aside.4. Role of Appraiser in the Misdeclaration:Shri Khurshid Rehan, the Appraiser, was found to have failed in his duty by not conducting a proper random examination of the consignments. The Commissioner noted that his failure to detect the misdeclaration resulted in potential revenue loss. However, the Tribunal found that there was no evidence of connivance or intention to evade duty on his part. Therefore, the penalty imposed on him was also set aside.5. Role of Liner Agency in the Misdeclaration and Unauthorized Reshipment:M/s. United Liner Agency was found to have facilitated the unauthorized reshipment of a container manifested for Kolkata Port back to Singapore without the permission of Customs Authorities. The Tribunal held that the liner agency's action rendered the goods liable for confiscation and justified the imposition of a penalty. However, considering the role played by the agency, the penalty was reduced from Rs. 5.00 lakh to Rs. 50,000/-.Conclusion:- The Appeals filed by M/s. Associated Clearing Agency, Shri Malay Sarkar, and Shri Khurshid Rehan were allowed, setting aside the penalties imposed on them.- The Appeal of M/s. United Liner Agency was partly allowed, with the penalty reduced to Rs. 50,000/-.(Pronounced and dictated in the open court)