TaxTMI 
TaxTMI 
TaxTMI 
2005 (10) TMI 392
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....of customs duty by M/s. Farport International, Customs House Agents, Chennai involving M/s. Hetero Drugs Limited., M/s. ITW Signode India Ltd., (appellant), M/s. Natco Pharma Limited, Hyderabad and others. Consequent to the investigations, Revenue proceeded against the appellants demanding duty and imposing penalty. The appellant approached CESTAT, Bangalore. The matter was remanded to the original authority for re-determination of duty demands and penalty if any on the appeal after hearing them in the matter. The CESTAT observed that in the de novo proceedings both sides could make use of the decision in case of Hetero Drugs Limited v. CC, Chennai vide Order Nos. 1594 and 1595, dated 12-12-2003 [2004 (168) E.L.T. 211 (Tri.-Bang.)]. Consequ....
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....gency. In terms of Section 147(3), an agent is also considered to be an importer of the goods in addition to the liability of the importer. The proviso to Section 147(3) states that if a short-levy or a non-levy arises as a result of an act which is not wilful in nature on the part of the agent, the amount is to be recovered first from the owner and then from the agent. (b) A principal is not to be considered guilty for the wrongful action of the agents, as held by the Bombay High Court in the case of M. Shashikant & Company and Others v. UOI reported in 1987 (30) E.L.T. 868 (Bom.). (c) The proviso to Section 147(3) of the Customs Act would come into play if the CHA had undertaken the malici....
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.... in the position to prove that the agent had colluded with the department with the sanction of the authorities. There is no evidence whatsoever in the show cause notice to indicate this position. Since there is no finding in the impugned order that there was any collusion or intention to evade duty on the part of the appellants, the longer period of limitation cannot be invoked. (g) The very fact that out of the 718 Bills of Entry, the department accepts that in respect of 717 Bills of Entry, the duty payment has taken place proves the bona fides of the appellants, particularly when for the very 717 Bills of Entry, the appellants had sent the amounts to the CHA only. (h) Equal penalty under ....
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....972216/- which the appellant is supposed to pay. The receipt is for an amount of Rs. 355/- only and belongs to another importer M/s. Nycer India. From this it is very clear that the goods of the appellant have been cleared without payment of duty in view of the forgery. Who has committed the forgery? The adjudicating authority in page 8 has stated "as discussed earlier the entries in the Bill of Entry were forged by the Custom House Agent of the importer". From this it is very clear that the CHA has committed the forgery. Since there is a departmental seal in the Bill of Entry, the possibility of connivance of departmental officers cannot be ruled out. In any case, no investigation appears to have been carried out on this aspect. It is also....
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.... Therefore, an importer is liable to establish that the actions of the CHA were in excess of the authority given to him. If that is on record, then in terms of the exception set out in Section 147(2), the importer would be liable. In terms of Section 147(3) an agent is also considered to be an importer of the goods in addition to the liability of the importer. The proviso to Section 147(3) states that if a short-levy or non-levy arises of an act of which is not wilful in nature on the part of the agent, the amount is to be recovered first from the owner and then from the agent. A conjoint reading of the above provisions would indicate that in terms of Section 147(3), if an agent is guilty of wilful act, negligence or default, he would alone....