Custom, Excise & Service Tax Tribunal
M/S. Rishad Shipping Agency Pvt.Ltd vs Commissioner Of Customs(Export), ... on 6 June, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. C/714/08-Mum (Arising out of Order-in- Original No.82/2008 dtd. 30.04.08 passed by the Commissioner of Customs (Export), Nhava Sheva ) For approval and signature: Honble Mr.P.K.Jain, 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?
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M/s. Rishad Shipping Agency Pvt.Ltd.
:
Appellants
VS
Commissioner of Customs(Export), Nhava Sheva
Respondent
Appearance
Shri G.B.Yadav, Advocate for Appellants
Shri M.S.Reddy, Dy. Commissioner(A.R.) for Respondent
CORAM:
Mr.P.K.Jain, Member(Technical)
Date of hearing: 02/06/2014
Date of decision 06/06//2014
ORDER NO.
Per : P.K.Jain
The brief facts of the case are that the export goods covered by 30 Shipping Bills were presented for export in the name M/s. AGM India , a proprietary concern of Shri Uma K.Jaiswa. The Shipping Bills were found to be in the name of the appellant CHA. The investigating unit contacted the Managing Director of the appellant company on phone who denied to have filed the said Shipping Bills. After investigations, the department found that the quantity and value of the goods were mis-declared by the exporter with malafide intention to claim undue draw back. Thereafter, statements of two employees of the appellant company, Shri Sachin Krishna Patil and Shri Hussain Allahbaksh, were recorded who confirmed that the said 30 Shipping Bills were not processed by them. The statement of Shri Behram J.Dadademery, Managing Director of the CHA was recorded wherein he denied any connection with the said Shipping Bills. A statement of another employee of the appellant company Shri Arun Haribhaoo Moon was recorded who again denied having handled the 30 Shipping Bills. Further investigations were done and it appeared that Shri Bhagwat Vazekar, Operation Executive of M/s. Able Shipping himself signed as exporter as also CHA on the Shipping Bills. Further, statement of one Shri Rajesh M. Bhalekar of M/s. Able Shipping was recorded who stated that the said consignment was booked on the instructions of Shri Ganesh Bingi, Managing Director of Able Shipping. Shri Ganesh, Bingi Managing Director in his statement stated that the consignment was booked on telephone by one Shri Ramesh Surajbaksh Singh of M/s. Adarsh Clearing & Forwarding. Shri Ramesh Surajbaksh Singh in his statement denied having booked the consignment in question. Further investigation lead to the fact that the exporter is a fictitious company. Transporters details were also found to be fictitious and therefore, investigation could not bring out who exactly booked the said consignment. Ld.counsel for the appellants states that as far as they are concerned, from the day one, even on telephone they have denied handling the said 30 Shipping Bills which obviously implies that someone else used their name. The Managing Director as well as all the three employees had denied handling the said consignment. The only link that has been alleged in the impugned order is that Shri Arun Haribhaoo Moon was employed with CHA as also with M/s. Adarsh Clearing & Forwarding during the period June, 2006 to October, 2006. Ld. Counsel further stated that the Managing Director of the appellant firm denied having knowledge of any such double employment of Shri Arun Haribhaoo Moon. No questions were asked in the statement recorded of Shri Arun Haribhaoo Moon whether he was employed with the two CHA firms. Further, no questions were asked to M/s. Adarsh Clearing and Forwarding whether Shri Haribhaoo Moon employed with them is the same person who was employed with the appellant company. The ld.counsel stated that whatever the position may be, from the day one, all the employees as also the Managing Director had taken the stand that they have never handled the said 30 Shipping Bills. It was also found during the investigation that the signatures have been put by Bhagwat Vazekar, the Operation Executive of Able Shipping company. Under the circumstances, there has been no role whatsoever in the fraudulent export of the goods. In fact, someone else has used their name without their knowledge and consent. Under the circumstances, the imposition of penalty is not warranted.
2. The ld. A.R. reiterates the findings of the adjudicating authority.
3. It is observed that the appellant company has denied having handled the said 30 Shipping Bills even on telephone on August, 2006. Their employees in their respective statements have also denied handling of these 30 Shipping Bills. The Managing Director in his statement again denied any connection with the said Shipping Bills on 7.8.2006 and 3.1.2007. The Shipping Company M/s. Able Shipping has not taken the name or pointed out the appellants. Thus I find that the investigation has not able to bring out any connection between the appellant and the 30 Shipping Bills. The only point mentioned in the impugned order is that Shri Arun Haribhaoo Moon was employed with the appellant as well as with M/s. Adarsh Clearing & Forwarding. M/s. Adarsh Clearing & Forwarding, as per the investigation, was the CHA who booked and handled the said consignment. Even Shri Arun Haribhaoo Moon has denied handling the said 30 Shipping Bills. Under the circumstances, I do not find any link between the appellant and the 30 Shipping Bills. There is no reason to warrant imposition of penalty on the appellant and accordingly the said penalty is set aside. The appeal filed by the appellant is allowed.
(Pronounced in court 06/06/2014 ) P.K.Jain Member(Technical) pv 4