TaxTMI 
TaxTMI 
2001 (12) TMI 652
X X X X Extracts X X X X
X X X X Extracts X X X X
....sehold article which was seized by DRI officers at Tuticorin on 25-9-98. The SCN merely alleged against the CHA to show cause as to why penalty should not be imposed on him under Section 112(a) & (b) of the Customs Act. 2. However, the entire records centered around the passengers for bringing the items in contravention of ITC policy and Baggage Rules. However in the impugned order, the Commissioner of Customs, Trichy has imposed penalty of Rs. 2 lakhs under Section 112(a) of Customs Act, 1962 along with order of absolute confiscation of Land Rover Car besides imposing penalty on two passengers and on the appellant CHA on the following findings :- "He defended himself saying that he was only a CHA and as such he has declared the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., it was seized by DRI officers who numbered it. Even on this basis, there cannot be any charge unless the Bill of Entry had been filed. The facts narrated in the SCN was that the passenger K.L. Bernard Raj was only an employee and he had no means to bring the car and the household baggages and he had stated in his statement that his employer had directed him to take the same; that he was a poor person and the Commissioner had proceeded to charge solely on the ground that he had no means to bring the car and other goods. Ld. Counsel submits that there are clear instructions from the Board not to question the means and financial status of the passenger when they have satisfied all the rules and regulations. He contended that the CHA was more....
X X X X Extracts X X X X
X X X X Extracts X X X X
....therefore the findings arrived at by the Commissioner is not justified as there was no charge against the appellants and same has not been proved also. He submits that the case is covered by the judgment rendered by North Regional Bench, New Delhi in the case of P.S. Bedi & Co. v. C.C. New Delhi reported in 2001 (133) E.L.T. 86 wherein in similar circumstances, the penalty imposed on the CHA was set aside as there was no allegation of connivance or the agent receiving any benefit in preparing the papers than the normal charges. He pointed out that his case stands on a better footing as the Bill of Entry had not been filed but it was seized by the DRI and numbered even before it was filed. Even otherwise there was no specific allegation in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the person is not to be taken into consideration for allowing clearance under T.R. Rules. Ld. Counsel also relied on Sanco Trans Ltd. v. C.C. Bangalore case reported in 1996 (83) E.L.T. 557 (T) wherein it has been held that penalty on CHA is not imposable and further it has been held that negligence per se is different from culpable negligence and penalty cannot be imposed for mere lack of exercise of proper inspection, supervision and diligence. 4. Ld. DR Shri C. Mani contended that the CHA knew that the passenger was a poor person and working as an employee of Shri Bernard Raj and tutored him to say that he was earning 6200 Dirhams per month and therefore it clearly established his connivance in the matter and hence penalty was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....merely because he had understood by physical appearance of Chinnadurai that he was a poor and illiterate person and he tutored Chinnadurai to tell customs officers that he was an employee as Supervisor earning 6200 Dirhams per month as instructed by Bernard Raj. Therefore, he is not involved in this case and liable for penalty under Section 112(a) of the Act. It is difficult to understand how on the basis of a mere understanding of a person being poor and illiterate connivance of smuggling activity is a violation of Section 112(a) of Customs Act and could be inferred and penalty clause invoked. There is nothing on record to show that appellant CHA has committed any offence knowingly with an intention to commit under the law. Appellant has m....