Judgment
1. After hearing the applicant/appellant for some time, it transpires that the main appeal of the C.H.A. could be disposed off at this stage.The appeal is taken up for disposal.
2. The appellant has been imposed a penalty of Rs. 50,000.00 (Rupees fifty thousand) under Section 114(iii) of the Customs Act, 1962. They were the CHA. The finding of the Commissioner has been arrived at on consideration that none of the concerned persons, either the Exporter or the Drawback Account Holder or the Representative of the Exporter who had engaged the said CHA for the instant job, appeared for examination or to defend the FOB declared by them, and thereafter, he upheld the misdeclaration of the value which would result in liablity to confiscation as arrived at by him. As regards present appellant, the Commissioner has found as follows: ...has failed to perform his duty in a bona fide manner. They haveclaimed that they were given work by the Exporter whereas the Exporters have denied having given any work to any agent during the material period in Kolkata. As such it is evident that the CHA did not act in bona fide manner. They could have ascertained the authenticity of the authorised signatory, but did not do so. They have also not submitted any PAN No, Bin No. or any other document which shows that the person concerned was related to M/s. Dot Dot Expo & Info Co. As such I hold that they have failed to perform their bona fide duty. Accordingly, I hold that they are liable to penalty.
3. We find the acts for which the Commissioner is holding the CHA liable for penalty are misdeclaration of valuation and consequent liability to confiscation under the provisions of Customs Act, 1962.
For liability to confiscation, an export consignment will not call for a penalty under Section 114(iii), since there is nothing brought on record that the CHA knew that the valuation was incorrectly declared.
The said conducts of non-ascertaining the bona fides of theclient, specially not finding out the Pan Number, would be within the purview of the misconduct, if any, under the CHAL Regulations under which the CHA had been licensed to conduct the work in the Customs House by the Commissioner of Customs. We would, therefore, set aside the penalty arrived at under Section 114(iii) of the Customs Act, 1962. However, we keep the matter open to the Commissioner to initiate enquiries if deemed fit under the CHAL Regulations. This appeal and the Application are allowed in above terms.