ORDER
Archana Wadhwa, Member (J)
1. All the four appeals filed by the Revenue are directed against the order dated 8.5.98 (issued on 26.6.96) passed by the Commissioner of Customs, Kolkata, vide which he has confiscated the Polyester Fabrics imported by M/s. CEEAN International Pvt. Ltd. With an option to them for redeeming the same on payment of a redemption fine of Rs. 2.00 lakh (Rupees two lakh) in addition to imposition of personal penalty of Rs. 50,000.00 (Rupees fifty thousand) imposed upon them on the charges of misdeclaration in Denier of Fabrics. However, he has not imposed any penalty on Shri Mahendra Patni, Managing Director of M/s. CEEAN International Pvt. Ltd., Shri Narendra Nath Jain, Director of M/s. CEEAN International, Shri Arun Kumar Jha, Partner of M/s. P.G. Modak and Sons(C.H.A) and Shri Raju Jain. The Revenue is aggrieved with the said portion of the impugned Order vide which no penalties have been imposed upon the four captioned respondents.
2. We have heard Shri Sudhir Mehta appearing for S/Shri M. Patni N.N. Jain and R.Jain as also S/Shri P.K. Dutta and B. Mukherjee, both Advocates, appearing for Shri A.K. Jha, Partner of M/s. P.G. Modak & Sons. We have also heard Shri T.K. Kar, learned SDR for the Revenue.
3. As regards Shri Mahendra Patni, Managing Director and Shri Narendra Nath Jain, Director, of M/S. CEEAN International Pvt. Ltd., we find that the charges of misdeclaration in respect of import of denier of fabrics have been established and accordingly, goods have been confiscated and penalty imposed on M/s. CLEEN International. However, no penalty has been imposed either on Shri Mahendra Patni, Managing Director or on Shri Narendra N. Jain, Director, of M/s. CEEAN International Pvt. Ltd. Inasmuch as no specific role has been attributed to S/Shri Patni and Jain, we do not find any justification for imposing any separate penalty upon the two persons, especially when the importing firm has already been penalised.
4. As regards Shri Raju Jain, the Commissioner has observed as under:
“Regarding the role of Rajendra Jain, Shri Mehta stated that Shri Rajendra Jain did not write anything on the Bill of Entry and had nothing to do with the importation. As a friend of Shri Patni, he offered some opinion regarding the documents when asked for by the CHA.”
As against the above, the Revenue has contended in their Memo of Appeal that Shri Raju Jain was presented by Shri Arun Kumar Jha and acted as a representative of the importers by way of appearing before the Customs officers in the absence of Shri Mahlendra Patni for the purpose of explaining the different aspects of the Advance Licence to the Customs Officers, without seeing the goods and without ascertaining the correct denier of the goods. It has been further contended in the said appeal that spite of his knowledge, he appeared to have taken the benefit of duty-free clearance against DEEC on the goods which appeared to be not covered by the subject Advance Licence and DEEC Book. It appeared that he had come forward purposely at the very outset to explain his conduct. As such, the Revenue has pleaded that it appeared that Shri Raju Jain has aided and abetted the importers for clearance of the goods which he had reasons to believe that the same were liable to confiscation.
5. A reading of the above contentions raised by the Revenue would show that there is factually no evidence on record to support the allegation of Revenue that Shri Raju Jain was in knowledge of the fact of wrong-mentioning of the denier in the bill of entry and as such, was aiding and abetting the importers. He has simply extending a helping hand to the importers for clearance of the goods from Customs, which fact by itself cannot attribute any mala fides on the part of Shri Raju Jain. As such, we do not find any infirmity in the view taken by the Commissioner that no penalty is liable to be imposed upon the said noticee.
6. As regards the imposition of personal penally on Shri Arun Kumar Jain, Partner of M/s. P.G. Modak & Sons, the Commissioner has observed that the said noticee has denied his involvement in the misdeclaration of the goods in any way. The said Agent has filed the bill of entry on the basis of the instructions received from the importers and in exercise of their day-to-day business. We find that in the appeal memo, the Revenue has not referred to any instance so as to show that the said Customs House Agent was aware of the fact of misdeclaration by the importers. The denier of the fabric was found to be much lower than the declared denier, only on examination of the available goods and from the paper labels fixed thereon. The fact that Shri Arun Kumar Jha wrote “Denier 250” on the bill of entry by itself is not indicative of the fact that he was in knowledge of the misdeclaration of the goods. The Customs House Agent is required to give the declaration on the importing document as disclosed to him by the importers and does not have any means to check or verify the same. As such, we do not find any reasons to impose penalty on the C.H.A. or its partner.
In view of the foregoing, all the four appeals filed by the Revenue are rejected.