Order date – 16 September 2022

Facts – 

• The Appellant, M/s. United Custom House Agency Private Limited and ors., are Carrying and Forwarding Agent and were investigated by the department on the grounds that some exporters were attempting to smuggle synthetic fabric materials to Bangladesh through Petrapole LCS, without declaring the same by tagging some illegal consignments with genuine export of similar goods in smaller quantity under cover of licit Shipping Bill.
• A Show Cause Notice dated 29.6.2015 was issued alleging violation of the provisions of Sections 33,34,40(a) & 50(1) of the Customs Act, 1962 and were alleged and proposal for confiscation of the export goods under Sections 113(f), 113 (g) & 113 (h)(i) of the Customs Act, 1962 and that of vehicles under Section 115(2) was made. 
• Also penalty upon the exporter under Section 114(iii) of the Act; and upon the CHA M/s UCHA and the C&F Agent Prakash Ghosh u/s 114(iii) &114AA of the Act was proposed.
• Aggrieved, the appellant filed an appeal.

Issue – 

• Whether the appellant is liable for confiscation of the export goods and penalty?

Order – 

• The Tribunal observed that the trucks parked in CWC cannot be treated as foreign going vehicle until Bill of export is submitted and examination of the cargo is physically done by the customs.
• In consideration of the factual matrix of the case, the tribunal held that the Revenue has totally failed to adduce tangible evidence in support of the allegation to sustain the impugned order of confiscation.
• The ingredients of Section 114AA of the Act are not applicable to the CHA/ C & F Agent and are meant against the fraudulent exporter as is made out from 27th Report of the Standing Committee on Finance.
• Also the Department has failed to prove that there was a mala fide and willful mis-representation by the Customs Broker. It was found that the Commissioner has totally misunderstood the facts and has wrongly observed that the appellants Customs Broker and the C & F have been operating from the same premises which leads one to suspect the bona fides of the appellants.
• Further, the Commissioner was observed to be wrongly come to the conclusion that the C & F Agent is involved in the illegal export whereas he is only a Carrying and Forwarding Agent and has been facilitating transporting, loading and unloading on the basis of the documents furnished by the exporter. 
• Therefore the allegation against the C & F Agent has not been corroborated through any financial investigation and one cannot be punished on the basis of assumptions and presumptions.
• Appeal allowed.