Custom, Excise & Service Tax Tribunal
Dominic & Co vs Commissioner Of Customs (G), Mumbai on 12 June, 2013
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/927/12
(Arising out Order-in-Original No. 37/2012/CAC/CC(G) PKA dated 26.06.2012 passed by the Commissioner of Customs (Gen), Mumbai)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. S.K. Gaule, 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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Dominic & Co.
Appellant
Vs.
Commissioner of Customs (G), Mumbai
Respondent
Appearance:
Shri O.P. Khanduja, Advocate for the appellant Shri M.S. Reddy, DC (AR) for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. S.K. Gaule, Member (Technical) Date of hearing : 12-06-2013 Date of decision : 12-06-2013 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) The appellant (a CHA) has filed this appeal against the impugned order wherein the CHA licence no. 11/126 has been revoked along with forfeiture of entire amount of security deposit.
2. The brief facts of the case are that on the basis of information received from the DRI that the importer M/s. Raju Doshi (HUF) has declared the imported goods as plastic and glass cutlery items, plastic ring, small plastic bullet pendant and big plastic bullet pendant. On examination of the goods, it was found that apart from glass items, fireworks were also there. The consignment was cleared by the appellant therefore on the basis of the report of DRI of September 2009 the CHA licence of the appellant was suspended in September 2009 and thereafter post decisional hearing was given and order was confirmed by the order of December 2009. Thereafter proceedings under Regulation 22 were initiated against the appellant by appointing enquiry officer on 30.04.2010. The enquiry officer submitted report on 29.3.2012. Thereafter, the CHA licence was revoked on 04.07.2012. Aggrieved from the said order of revocation, the appellant is before us.
3. Shri O.P. Khanduja, ld. counsel for the appellant submitted that initially four charges were framed against the appellant for violation of Regulation 13(a), (d) and (n) and Regulation 12 of the CHALR 2004. After conducting the enquiry, the enquiry officer dropped the charges levelled against them under Regulation 12 and 13(n). Remaining two charges under Regulation 13(a) and (d) were held proved but the ld. Commissioner without putting to notice to the appellant that he is not agreeing with the report of the enquiry officer held that all the charges proposed against the appellant have stands proved. In these circumstances, as per the decision of Delta Logistics vs. UOI 2012 (276) ELT 314, the ld. Commissioner cannot deal with the charges proposed against the appellant under Regulation 13(n) and Regulation 12 without putting to the notice to the appellant that he is disagreeing with the enquiry report, therefore the impugned order qua holding the charges proposed against the appellant under Regulation 13(n) and Regulation 12 is not sustainable. For the charges under Regulation 13(a) it is submitted by the ld. counsel that appellant has obtained proper authorisation from the importer on 05.08.2009 before start of importation and as same was not asked from the appellant to produce by the custom authorities at the time of clearance of the goods, therefore he did not produce the same before the customs authorities and as held by this Tribunal in the case of P.P. Dutta 2001 (136) ELT 1042 as the appellant were having authorisation from the importer the charges of violation of Regulation 13(a) is not sustainable. He further submits that as charge of Regulation 13(a) is not sustainable, therefore the charge under Regulation 13(d) is not sustainable as there is no discrepancy found in the documents filed by the appellant on behalf of the importer. It is only at the time of examination of goods it was found that apart from the items mentioned in the bill of entry, some fireworks were also found which is prohibited for importation. Therefore relying on K.S. Sawant & Co. 2012 (284) ELT 363 the charge proved against the appellant under Regulation 13(d) is also not sustainable. Therefore he prayed that impugned order be set aside.
4. On the other hand, ld. AR strongly opposed the contention of the appellant and drew our attention to the impugned order wherein it has been recorded by the ld. Commissioner that the appellant is involved in mis-declaring the impugned goods by way of the description shown in the bill of entry; same was found in the examination of the goods. Moreover, no authorisation was produced by the appellant at the time of clearance. Therefore the contention that the appellant has obtained authorisation from the importer prior to importation is only after thought. He further submits that as the appellant did not know the importer which was brought by Shri Popat Bhor, one of the intermediaries. Therefore, it is settled that appellant has not advised to the importer properly and the said facts were not brought to the notice of customs authorities. Therefore, he has violated Regulation 13(d). He further submits that as Shri Popat Bhor was dealing with the importer and the appellant being an intermediary and dealing with the goods therefore, charge against the appellant under Regulation 12 is stand proved as appellant were not dealing directly to the importer and they have authorised Shri Popat Bhor to use the licence. As these are the discrepancy found, therefore, charge against the Regulation 13(n) is also stand proved. In these circumstances, the ld. Commissioner has revoked the CHA licence.
5. Heard both sides. Considered the submissions.
6. In this case M/s. Raju Doshi (HUF) is a IEC holder who let the IEC to Shri Abdul Rahim, importer for importation of the goods. But in the invoice as well as import documents, M/s. Raju Doshi (HUF) is shown as the importer and from the importer M/s. Raju Doshi (HUF) the appellant has obtained proper authorisation as required under Regulation 13(a) of the CHALR 2004. As held by the Tribunal in P.P. Dutta (supra) that at the time of clearance if the authorisation is not asked by the customs officer and bills of entry has been duly signed by the appellant same is implied that the appellant has obtained authorisation from the importer. Therefore we hold that the charge levelled against the appellant under Regulation 13(a) stands not proved. With regard to charge under Regulation 13(d), we find that no discrepancy was found by the authorities in the documents filed by the appellant therefore question of advice does not arise and description shown in the bill of entry matches with the documents like invoice, packing list, when there is no discrepancy then it is not required for the appellant to bring it to the customs authorities. Further, in this case, only at the time of examination it was found that some fire works apart from the goods in the bill of entry which is not proved by the authorities was in the knowledge of the appellant. Therefore, in the absence of any evidence on record that appellant was having knowledge of misdeclaration, charge under Regulation 13(d) also stands not proved as held by the Tribunal in K.S. Sawant & Co. (supra). With regard to the remaining charges levelled against the appellant under Regulation 12 and 13(n) as held by the Tribunal in H.P. Joshi & Co. 2012 (284) ELT 358 that while giving personal hearing to the appellant, the Commissioner has not given notice to the appellant that he is not agreeing with the Inquiry Officers report and that no reason for disagreement were also given. Therefore, relying on the decision of Delta Logistics (supra) these charges are also stands not proved.
7. With these observations, we hold that charges proved against the appellant stands not proved. Accordingly impugned order is set aside. The appeal is allowed with consequential relief.
(Dictated in Court) (S.K. Gaule) (Ashok Jindal) Member (Technical) Member (Judicial) SR 6