Custom, Excise & Service Tax Tribunal
Sun Clearing & Forwarding Services Pvt. ... vs Cc (General), Mumbai on 21 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/719/11 Mum
Arising out of Order-in-Original No. 51/2011/CAC/CC(G)/SLM-CHA(Admin) dated 22.07.2011 passed by the Commissioner of Customs (General), Mumbai.
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Honble Shri P.R. Chandrasekharan, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Sun Clearing & Forwarding Services Pvt. Ltd.
: Appellant
Versus
CC (General), Mumbai
: Respondent
Appearance Shri J.C. Patel, Advocate : For Appellant Shri A.K. Prabhakar, Superintendent (A.R.) : For Respondents CORAM:
Shri Ashok Jindal, Member (Judicial) Shri P.R. Chandrasekharan, Member (Technical) Date of Hearing : 21.05.2012 Date of Decision : ORDER NO.
Per Ashok Jindal The appellants are in appeal against the impugned order whereby the CHA licence No.11/499 has been revoked.
2. The facts of the case are that the Directorate of Revenue Intelligence (DRI) investigated a case of export fraud which has revealed that large scale fraudulent exports of readymade garments under Buy Back System were effected and excess ineligible Drawback availed by a syndicate of operators comprising of Shri Badshah Mallik, Shri Shehroz Malik and Shri Sitaram Jadhav in the name of fictitious/bogus export firms by resorting to gross overvaluation of the export goods. No foreign remittances were received against the subject exports. Neither Shri Sitaram Jadhav nor the other two members of the syndicate had a valid Custom House Agent (CHA) licence required for Custom clearances of the export goods and as such Shri Sitaram Jadhav negotiated with the various CHA Firms for allowing their CHA licences to be used by him without actually requiring them to attend to the clearances. It was further found that the appellant was involved in the clearance of the impugned consignment. During the course of investigation the statement of Shri Kailash Bahiru Jadhav, Director of M/s Sun Clearing & Forwarding Services Pvt. Ltd., was recorded wherein he admitted that he had attended to export clearances work related to export consignments of M/s Leevon Overseas and Shipping Bills were filed by them. It is admitted that they have not met or spoken to anybody on behalf of the exporter and inter alia admitted that he knew one Shri Sumit Vikrant Ghatkamble who requested him that he has an export job of M/s. Leevon Overseas and whether he can negotiated and take up the said export job. On his agreeing, Shri Sumit V. Ghatkamble filed ten Shipping Bills in the name of the said exporter. Shri Sumit V. Ghatkamble had informed him that the export documents of M/s. Leevon Overseas were received by him from one Shri Mahesh Pande who was known to him. He further stated that he had negotiated with Shri Mahesh Pande for clearance charges of Rs.2,200/- per Shipping Bill and gave him Rs.5,000/- in cash. It is also admitted that Shri Sumit V. Ghatkamble is not an employee of M/s. Sun Clearing & Forwarding Services Pvt. Ltd. but he only had dealt with the said exporter or the person by name Shri Mahesh Pande. He also admitted that he had failed to exercise due caution including verification of the antecedents of the exporter before acting on behalf of M/s Leevon overseas.
3. The statement of other persons were also recorded and thereafter an enquiry was conducted under CHALR, 2004 for violation of Regulation 12, 13(a), 13(b), 13(d), 13(e) and 13(n) of the CHALR, 2004, against the appellants and the Enquiry Officer held that all the charges against the appellants have been proved. Thereafter, an enquiry was initiated against the CHA and the article of charge was confirmed. Consequently the CHA licence was revoked. Therefore, the appellants are before us.
4. Shri J.C. Patel, learned Advocate appearing for the appellants submitted that the adjudicating authority was not consistent while taking the decision to revoke the CHA licence of the appellant as in the same investigation another CHA namely M/s Frontier Shipping Agencies Pvt. Ltd. was also involved in the fraudulent export under buyback scheme and in that case on the similar charges, an Inquiry was conducted and thereafter the Commissioner has made operative of their licence on forfeiture of security deposit. Therefore, the penalty imposed on the appellant is not warranted and on that ground alone the impugned order is liable to be set aside. He further submitted that this Tribunal in the case of Ganpati Warehousing Ltd. vide order No. A/78/2012/CSTB/C-I dated 18.01.2012 observed that the punishment against the appellant is harsh and without considering the true and correct facts and thereafter the revocation of CHA licence was withdrawn.
4.1 He further relied on the decision of this Tribunal vide order A/248/2012/CSTB/C-I dated 04.04.2012 wherein this Tribunal has found that the Commissioner of Customs has followed the policy of pick and choose and there is no consistency in decision while dealing with the same situation. Therefore, the revocation of CHA licence was set aside. Same view was taken by this Tribunal in the case of Shri Dhimant P. Doshi Vide Order No. A/247/2012/CSTB/C-I dated 27.03.2012. He submitted that the Commissioner has failed to consider the contention of the appellant that Shri Sumit V. Ghatkamble was a trainee employee of their firm M/s. Sun Clearing & Forwarding Services Pvt. Ltd. As Shri Sumit V. Ghatkamble was a temporary employee of the appellant therefore, the charge under Regulation 12 for sold out the CHA licence does not stand proved. Therefore, the impugned order is liable to be set aside on this ground.
4.2 He further submitted that the Commissioner has not considered the decision in the case of Thawerdas Wadhoomal vs Commissioner of Customs - 2008 (221) ELT 252 (Tri. Mum) wherein this Tribunal considered that procuring work on commission basis does not amount to sub-letting or otherwise transferring the CHA licence to other persons and the said order has been confirmed by the Honble High Court of Bombay as reported in 2009 (240) ELT A143 (Bom.).
4.3 Therefore, he prayed that the CHA licence is under suspension since 2008 and the punishment suffered by the appellant may be considered as sufficient and their licence be made operative with immediate effect.
5. On the other hand the learned A.R. reiterated the findings in the impugned order.
6. We have considered the submissions made by both the sides and perused the records.
7. We find that the appellant has not disputed that the clearance of the impugned goods has been conducted by Shri Sumit V. Ghatkamble. It is also an admitted fact that Shri Sumit V. Ghatkamble was not having a customs pass. When a person is not having a customs pass and a trainee employee as contended by the appellant, in that situation, the clearance were conducted by Shri Sumit V. Ghatkamble is against the provision of CHALR, 2004, as the same was done without any authority of the appellant that the act of Shri Sumit V. Ghatkamble was within the knowledge of the appellant. These facts are also admitted by Shri Sumit V. Ghatkamble. It is also an admitted fact that the work has been brought by one Shri Mahesh Pande to Shri Sumit V. Ghatkamble to whom the appellant has allowed to use their CHA licence for some consideration. Therefore, the observation made by the adjudicating authority in the impugned order that I find that no such permission has been obtained and that Shri Sumit V. Ghatkamble was not holding custom pass in the name of charged CHA while undertaking customs clearance of the subject export goods under the ten shipping bills of M/s Leevon overseas. Therefore, the charge under Article 12 has been proved against the appellant is beyond doubt is correct.
7.1 Another argument advanced by the learned Advocate is that the facts of the case are similar to Frontier Shipping Agencies Pvt Ltd.,(supra). We have gone through the charge against the CHA in the case of Frontier Shipping Agencies Pvt Ltd., (supra). In that case, the clearance was handled by Shri Vishwas Ramchandra Lanke who was a regular employee of the CHA and all the documents regarding clearance of such goods was sent by CHA Shri C.K. Dawar. Therefore, the activity of the Shri Vishwas Ramchandra Lanke was for clearance of export consignment was done by a regular employee having the custom pass. Therefore, in that scenario, it was observed that the CHA licence was used for monetary consideration and the charge was not proved. The same view was taken by this Tribunal in the case of Thawerdas Wadhoomal (supra). But in the case, in hand, the export clearance was held by Shri Sumit V. Ghatkamble and no clearance work was attended by any of the Director of the CHA firm or their employee having the custom pass. Therefore, the facts of both the cases are distinguishable.
7.2 Accordingly, the decision in the case of Frontier Shipping Agencies Pvt Ltd.,(supra), Ganpati Warehousing Ltd. and Shri Dhimant P. Doshi are distinguishable from the facts of this case.
8. In view of these observations, we are not convinced with the arguments advanced by the learned Counsel. The charges alleged against the appellants under CHALR, 2004 are stands proved. Therefore, we do not find any reason to interfere with the impugned order and the same is upheld, accordingly the appeal is dismissed.
(Pronounced in the Court on.) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) nsk 8