2019 (9) TMI 134

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.... of the present case are that the appellant who is working as Custom House Agent (CHA) were authorized by M/s. Weir Minerals India Pvt. Ltd., Bangalore (hereinafter referred to as Weir/importer) to collect the documents pertaining to Bill of Lading No.KEH305320 dated 26.11.2011 from M/s. Panalpina being the freight forwarder and clear the consignment. Thereafter, the appellant prepared a checklist on the basis of the documents provided by M/s. Panalpina with details of M/s. Auma Riester GmbH & Co. Germany as the supplier and valued at 1,79,925 EUR as mentioned in the invoice. The said checklist was forwarded to Weir and upon approval from Weir, the appellant filed the bill of Entry No.5669696 dated 6.1.2012 and cleared the goods on payment ....

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....e checklist based on invoice dated 2.11.2011 of Auma and upon approval from Weir, they filed the documents with the Customs. She further submitted that the appellants have acted with due diligence in ascertaining whether the shipment is a commercial shipment and preparing the checklist based on the invoices provided to them. Further whether the Bill of Entry contains the declaration as contained in the invoices, the allegation of mis-declaration is not sustainable against the appellant. She also submitted that only after confirmation by Weir, the appellant have filed the Bill of Entry and the above facts were submitted before the adjudicating authority and the appellate authority against which they have not given any finding. She also submi....

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....3) ELT 835 (Tri.-Del.) * Rajesh Maikhuri vs. Commissioner of Customs, New Delhi: 2018 (363) ELT 274 (Tri.-Del.) * Chakreshwari Shipping Agency P. Ltd. vs. CC (ACC & Export), Mumbai: 2014 (310) ELT 614 (Tri.-Mumbai). 4.1 Inasmuch as they have not acted with intent to enable the importer to evade duty payment. In support of this submission, she relied upon the following decisions: * Mahendra Shah vs. CC, Mumbai: 2010 (261) ELT 497 * M.J. Joshy vs. CC, Chennai: 2010 (258) ELT 460 (Tri.-Chennai) 4.2 She also submitted that the penalty on the appellant cannot be imposed unless there is evidence to show that the failure on the part of the appellant was on account of the mala fide intention. In support of this submission, she relied upon....

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....of the Tribunal and it has been consistently held that if there is no evidence of aiding and abetting against the CHA, then penalty cannot be imposed on CHA. In the case of Falcon India cited supra, the Division Bench of CESTAT, Delhi in identical circumstances in para 4 has held as under: "4. After hearing both sides and on perusal of record, it appears that what the documents were supplied by M/s. JMD India, the appellant has filed Bill of Entry on the basis of the papers where the number of boxes were matching. There was no discrepancy found in the number of boxes at the time of landing of the goods. The CHA was not aware about the weight of the goods. Only later stage, it was found that the goods are having different weight. The impor....