Full Judgment
3. The appellant is a CHA (Custom House Agent). The brief facts of the case are that on 7-6-2002 one shipping bill was filed for export of the goods declared the same as ready-made garments declaring the value of Rs. 1/19,83,429/-. On examination, goods were found to be of inferior quality and market enquiry, it was found that the goods were only of Rs. 8,00,320/-. The adjudicating authority imposed the penalty on the present appellant who is the CHA on the ground that he is part of conspiracy consisted of Shri Rajan Arora, proprietor of M/s. P.K.M.Enterprises, Shri Dinesh Bhalla and Shri Suresh Goel who tried to export the goods which were overvalued to get a higher amount of drawback." 4. The contention of the appellant is that he is working as a CHA under the name of M/s. Cargo Care one Shri Rajan Arora, proprietor of M/s.
P.K.M. Enterprises approached him for export of certain goods and for consideration of Rs. 2,500/- as CHA charges. The relevant documents in respect of the consignment was also handed over by Shri Rajan Arora.
All the documents were filed as per the instructions of Shri Rajan Arora proprietor of M/s. P.K.M. Enterprises at the time of examination by the Customs officers, it was found that the goods were inferior quality and also there was shortage in quantity. The appellant immediately informed Shri Rajan Arora on whose instructions the shipping bills were filed and Shri Rajan Arora instructed to convert the shipping bill to non-drawback. On his instructions, the appellant requesting the Customs authorities to convert the shipping bill filed by the exporter to non-drawback. This request was accepted by the Customs authorities. The goods were ordered to be exported, thereafter the goods were again examined and it was found to be of less value than declared in the shipping bill. The contention is that the appellant has no role to misdeclare the goods. The declaration was filed as per the instructions of Shri Rajan Arora, proprietor of M/s. P.K.M. Enterprises and the appellant are only get Rs. 2500/- for his fees. The contention is that there is no evidence on record to show that out of the drawback claim which was to be received by the exporter the appellant to get any share and there is no evidence on record to show that the appellant advised the exporter to misdeclare the goods. The appellant is only a CHA and filed shipping bill as per the instructions of the exporter on the asking of Customs authorities the appellant immediately disclosed the name and address of the exporter and Shri Rajan Arora was also found available on the given address and thorough investigation was made by the Customs authorities. In these circumstances, the contention is that the penalty under Section 114 is not sustainable.
5. The contention of the Revenue is that as per the provisions of Section 114 of the Customs Act where any person who in relation to any goods, does or omits to do any act which act which results the goods liable for penalty. The contention is that as the appellant filed shipping bill and the goods were found as per declaration and the goods are liable for confiscation, therefore, the appellant is liable for penalty under Section 114 of Customs Act. It is also submitted by the Revenue that appellant is a duty bound to verify the contents of the consignment that these are as per declaration. The contention is that the exporter as well as the appellant tried to get the higher amount of drawback, therefore, the penally is sustainable.
6. In the present case, the adjudicating authority held that the appellant is a party to conspiracy with the exporter to get higher amount of drawback. The shipping bill was filed in the name of M/s.
United Exports and all the documents were handed over by Shri Rajan Arora to the appellant who is also proprietor of another firm M/s.
P.K.M. Enterprises. The present appellant was present at the time of inspection of the goods and pointed out that the goods were not as per declaration, he immediately informed Shri Rajan Arora as per the instructions of Shri Rajan Arora he made a request to change the shipping bill to non-drawback. lie was only gelling Rs. 2500/- as fees for filing the shipping bill as per the instructions of Shri Rajan Arora. There is no evidence on record to show that the appellant advised the exporter to misdeclare the goods or the appellant has to gel something out of the amount of drawback which is received by the exporter only on the ground that the appellant filed the shipping bill which was as per the instructions of Shri Rajan Arora, the exporter which cannot be said that the appellant was part of conspiracy to get higher amount of drawback. In these circumstances, the impugned order whereby the penalty is imposed on the present appellant is set aside and the appeal is allowed.