Custom, Excise & Service Tax Tribunal
Vinayak Shipping Services vs Commissioner Of Customs (General), ... on 5 July, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No.C/89009/14 (Arising out of Order-in-Original No. 69/2014/CAC/CC(G)/PKA-CHA(Admn) dated 12/06/2014 passed by the Commissioner of Customs (General) Mumbai ) For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, 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 : No 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?
======================================================= Vinayak Shipping Services :
Appellant VS Commissioner of Customs (General), Mumbai :
Respondent Appearance Shri R.K. Pardesi, Advocate for Appellant Shri D.K. Sinha, Assistant Commissioner (A.R) for respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. C.J. Mathew, Member (Technical)
Date of hearing : 05/07/2016
Date of pronouncement : 07/11/2016
ORDER NO.
Per : Ramesh Nair
This appeal arises from the order of the Commissioner whereby the Ld. Commissioner ordered for revocation of the CHA Licence of the appellant and also ordered the forfeiture of the entire amount of security deposit. Therefore the appellant has filed this appeal.
2. The fact of the case is that the appellant is a Customs Broker bearing Licence No. 11/898 (PAN No. AADFV5123E) which was issued under Regulation 10(1) of CHALR, 1984 (Now Regulation 7(1) CBLR, 2013 in Mumbai Customs). A case was reported by Directorate General of Revenue Intelligence, Mumbai Zonal Unit, vide F. No. DRI/MZU/C/INV-1/2013-14/7344 dt. 21.08.2013 informing that the Customs Broker has violated the provisions of CBLR 2013 (erstwhile CHALR 2004) and also proposing action against the Customs Broker under Regulation 19(1) of CBLR,2013 (erstwhile Regulation 20(2) of the CHALR, 2004). The brief facts of the case as informed by DRI are as follows:
The officers of DRI examined the imported consignment under Bill of Entry No. 2045723 dt. 6.5.2013 loaded in container No. HDMU 6653869 of the goods namely Embroidery Machine Needles imported from China. It was found that firstly the said goods attracted the anti dumping duty which was attempted to be evaded and also the quantity of needles was misdeclared as 20,000 pieces instead of 1,00,00,000/- pieces. Investigation revealed that the importer has submitted manipulated invoices to the Customs for filing the Bill of Entry which was prepared by one of the employees of the importer. In the statement of the importer recorded under Section 108 of the Customs Act, 1962 on 22.5.2013 has informed that he had agreed to pay Rs.4lakhs over and above the agency charges for customs clearance of the said consignment without the payment of anti dumping duty on the needles to Mr. P.P. Singh operating in the name of M/s. S.N.M Agency under Customs Broker No. 11/1481. Apart from the said misdeclaration, the goods imported are also found to be undervalued to the tune of 80% of the actual value. On the investigation it was revealed that the above stated goods were imported by M/s. Jai Ambey Impex in violation of the provisions of Customs Act, 1962. Though initially M/s. S.N.M Agency has undertaken the job of Customs clearance but subsequently for the purpose of clearance the said job was assigned to the appellant for which Shri P.P. Singh of M/s. S.N.M. Agency contacted Shri Manish Singh, who is one of the employee of the appellant. On statement recorded under Section 108 of Shri Manish Singh he stated that business of the IEC was given to him by Shri P.P.Singh and Shri B.P. Singh of M/s. S.N.M. Agency; he filed the bill of entry for the above consignment online; that he did not verify the invoices and scrutinize the documents and exercise due diligence in the said case; upon the system showing an error with regard to the serial number in the said notification Shri Manish Singh was directed by Shri B.P. Singh to remove the said entry and he would get the consignment cleared at the time of assessment from the Assessing Officer. In a Statement Shri B.P. Singh of M/s. S.N.M. Agency recorded under Section 108 of the Customs Act, on 21.5.2013 and 12.6.2013 admitted that there were 1,00,00,000 (one crore) needles in the subject consignment but he did not inform the same to the Customs Authorities; that he did not verify the IEC profile of the said consignment; failed to exercise due diligence in the said case; attempted to influence the conduct of customs officers. From the above, it appears that M/s. S.N.M. Agency and M/s. Vinayak Shipping Services, have tried to facilitate illicit import of goods in the name of dummy IEC and also facilitate/attempted to facilitate evasion of large quantum of anti dumping duty for monetary consideration. The Customs Broker was also well aware of the quantity of the goods. The Customs Broker also admitted that they did not verify the actual importer. In view of the above Act, the Customs Broker M/s. Vinayak Shipping Services was charged for violation of Regulations 11(a), 11(b), 11(d), 11(e), 11(f), 11(i), 11(m) and 11(n) of CBLR, 2013 (erstwhile Regulation 13(a), 13(b), 13(d), 13(e). 13(f). 13(i). 13(n) and 13(o) of CHALR 2004) and the licence was placed under suspension vide Order No. 16/2013 dated 30.08.2013 under the provisions of Regulation 19(1) of CBLR, 2013 (erstwhile Regulation 20(2) of CHALR, 2004. Thereafter the inquiry proceedings was initiated against the appellant. The Articles of charge were framed which are briefly given below:
Article of Charge-I This article of charge that the appellant is liable for violation of Regulation 11(a) of CBLR, 2013 (erstwhile Regulation 13(a) of CHALR 2004) in as much as the appellant has been handed over the import document by other Customs Broker, Shri P.P. Singh. Therefore they have not obtained the proper letter of authority from the importer. The signature of the importer on the authority letter was found to be different from the actual signature verified by the Bank therefore no authority letter was obtained.
Article of Charge-II In this article of charge was framed for violation of Regulation 11(b) of CBLR, 2013 inasmuch as the appellant has not personally or through an employee carried out the job of clearance in the present case. Shri Manish Singh employee of the appellant has filed the bill of entry but it was told to Shri B.P. Singh that he will not go to the docks for clearance it will be managed by Shri P.P. Singh through the officer therefore the appellant has violated the Regulation 11(b) of CBLR 2013.
Article of Charge-III In this article of charge there is a violation of Regulation 11(d) of CBLR 2013 by the appellant in as much as the appellant has not only kept himself away from giving a legal advise to the importer but it is one Shri Anuj, an employee of M/s. S.N.M. Agency and Shri P.P. Singh, who were co-coordinating with the importer. Therefore the appellant has not discharged their obligation as they have not advised the importer regarding the correct levy of anti dumping duty and proper declaration of the goods. The appellant was very much aware that there is an involvement of evasion of anti dumping duty to the tune of Rs.1.5 Crores thus the appellant has violated the Regulation 11(d) of CBLR 2013.
Article of Charge-IV Under Regulation 11(e) of CBLR, 2013 the appellant was supposed to exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. In this case the importer had declared 20,000 pieces instead of 1,00,00,000 pieces of Embroidery Machine Needles. This was very much known to the appellant but they have not taken any effort to ascertain the correct particulars as well as information about the levy of anti dumping duty on the consignment thus violated the Regulation 11(e) of CBLR 2013.
Article of Charge-V Under this article of charge the appellant appears to have violated Regulation 11(f) of CBLR, 2013 inasmuch as the appellant was not in direct contact with importer and was conveying the problems arising during the filing of Bill of Entry to intermediary regarding the applicability of the anti dumping duty. Thus they have not communicated the problems arose during the filing bill of entry to the importer and withheld the information from their client hence violated the Regulation 11(f) of CBLR, 2013.
Article of Charge-VI In this article of charge it was proposed that Regulation 11(i) of CBLR, 2013 was appeared to be violated. As per this regulation the Customs Broker will not influence the conduct of any official of the Customs. Shri Manish Singh employee of the appellant admitted in the statement that the attempt to remove the entry of Notification of anti dumping duty as conveyed by Shri P.P. Singh on the assurance of Shri P.P. Singh that he will influence the assessing officer to get the goods fraudulently cleared. Hence, as per the inquiry officer it appears that the Customs Broker has violated Regulation 11(i) of CBLR, 2013.
Article of Charge-VII In this article of charge it was proposed that the appellant has violated the Regulation 11(m) of CBLR,2013. According to which the Customs House Agent is under obligation to discharge his duties with utmost speed and efficiency and without avoidable delay. It was alleged that since the appellant has attempted to facilitate fraudulent imports and evasion of a huge sum of anti dumping duty for monetary consideration. They have not discharged their duty which efficiency, therefore the Regulation 11(m) appears to have violated.
Article of Charge-VIII Under this article of charge Regulation 11(n) was alleged to have violated as per this Regulation, the Customs Broker shall verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. Shri Manish Singh in his statement dt. 12.6.2013 recorded under Section 108 has admitted that he has not verified by the documents which was handed over to him by Shri P.P. Singh; they have failed in their duty to verify the genuineness of the IEC holder; that they also failed to verify the quantity of goods declared by the importer. Accordingly, he has failed to verify the correctness of the information provided to him by his client, hence failed to exercise due diligence. Since they have acted on the direction of middlemen and not by the importer, they have violated the Regulation 11(n) of CBLR,2013.
On these charges Inquiry Officer submitted the report vide letter dt. 30.4.2014 according to his report after analyzing the entire facts reported that the appellant has prima facie violation of Regulations 11(a), 11(b), 11(d), 11(e), 11(f), 11(i), 11(m) and 11(n) of CBLR, 2013 (erstwhile Regulations 13(a), 13(b), 13(d), 13(e). 13(f). 13(i). 13(n) and 13(o) of CHALR 2004). He further contended that arguments made in the reply and during the hearing which is contrary to the confession made in the statement recorded under Section 108 of the Act, the said statement will prevail over the argument. As per the inquiry report all the 8 charges were leveled against the appellant were held to be established and proved against the appellant. The appellant filed a written submission before the Ld. Commissioner wherein they submitted that the show cause notice were issued to Shri Kailashchand Nathmal Jain and others on the same facts and circumstances of this case and the appellant was not made party to the said show cause notice. The acts of Shri Manish Singh were suo moto in the nature and not attached to himself and the employer, i.e. the appellant. In the said proceedings Shri Manish Singh was penalized to Rs.2 lakhs on the sole ground that Shri Manish Singh did not verify the genuineness of the importer/IEC. Therefore for a particular negligence Shri Manish Singh was penalized therefore no charge against the appellant is established as no show cause notice under the Customs Act was issued to the appellant. They further submitted that their licence was remained suspended for quite long time that itself is a serious punishment suffered by the appellant. The inquiry officers observation is not correct as the authority letter was obtained by the appellant. The appellant came forward and claimed the goods therefore the identity of the importer is not in question. The Ld. Commissioner after considering the detail reply of the appellant passed the impugned order whereby he has ordered for revocation of the CHA licence and forfeiture of the security deposit. The Ld. Commissioner held that all the 8 charges have been established and proved. The Ld. Commissioner also observed that the appellants licence in the past also revoked and the same was upheld by the Tribunal, therefore the appellant is an habitual offender. Being aggrieved by the Order-in-Original. The appellant filed this appeal.
2. Shri R. K. Pardesi, the Ld. Counsel for the appellant submits that the appellant had no role for the misdeclaration of description of goods and in fact they had acted in a diligent manner informing the department about the alleged mis-declaration and they had withdrawn their services on behalf of the importer. Hence by informing the department about alleged misdeclaration they had withdrawn their services. Therefore they acted in a bona fide manner once they have withdrawn no charge can be established against the appellant. The Ld. Commissioner has rejected the authority letter and indemnity obtained by the appellant on the presumption that it is after thought it is completely erroneous. He submits that once the authorization was obtained by the appellant the violation of Regulation 11(a) cannot be alleged. As regard the confessional statement of Shri Manish Singh retraction dt. 13.6.2013 was submitted. Accordingly, the case could not have been decided on the basis of the statement. He submits that the appellants produced copy of letter dt. 10.5.2013 addressed to Assistant Commissioner CFS that the importer was not ready to follow the advise to pay anti dumping duty on the quantity of 1,00,00,000 pieces needles. Therefore there is no violation of Regulation 11(d) of CBLR 2013. The letter of indemnity was held by the Ld. Commissioner as of dubious origin which is only on the basis of assumptions, the Ld. Commissioner without any verification concluded that without any proper investigation. Moreover the identity of the importer is not in doubt as they claim the goods therefore it is not the case that the importer is dummy or is run away from the entire episode, therefore the rejection of indemnity letter is without any basis. He submits that once the mala fide of the importer came to the notice of the appellant they immediately withdrawn themselves from the job of customs clearance of the consignment in question. Thereafter there is no violation of any Regulation of CBLR established against the appellant. In support of his submission he also placed reliance on the following judgments.
(i) Vinayak Shipping Services Vs. Commissioner of Customs (General) Mumbai Zone-I Order No. A/425/08/CSTB/C-I dt. 21.7,2008
(ii) Ashiana Cargo Services Vs. Commissioner of Customs (I & G) 2014 (302) E.L.T. 161 (Del.) Commissioner Vs. Ashiana Cargo Services 2015 (320) E.L.T. A175(S.C.)
(iii) Commissioner of Customs (General) Vs. Worldwide Cargo Movers 2010 (253) E.L.T. 190 (Bom.)
(iv) S.N.M. Agency Vs. Commissioner of Customs 2014-TIOL-333-CESTAT-MUM.
3. Shri D.K. Sinha, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He submits that the appellant has a tendency to indulge into fraudulent import as in the past also the appellants CHA Licence was revoked and the Tribunal has upheld the revocation. As far as the present case is concerned the appellant conspired with other broker i.e. M/s. SNM Agency for clearance of the imported Embroidery Machine Needles by facilitating the importer evasion of huge anti dumping duty and misdeclaration of the goods. As per the statements of various persons it is clear that M/s. SNM Agency who assigned the work for clearance of the imported consignment order was in hand and gloves with the appellant and the appellant was well aware about the attempt of evasion of anti dumping duty and the misdeclaration of the quantity and value of the goods. It is only when the customs authority has pointed out the discrepancy, they immediately withdrawn themselves from the job of the clearance of the goods on behalf of the appellant. It is proved that the authority letter was fake as the signature from the authority letter not matching with the actual signature certified by the Bank. He submits that once it is proved that the appellant customs Broker is very well aware about the wrong doing by the importer then all the regulations which the Ld. Commissioner has held to be violated stand established. Therefore the Customs Broker has no legal and moral right to carry out the customs clearance work. He placed reliance on the decision of this Tribunal in the case of International Express Co. Vs. Commissioner of Cus. (General), Mumbai 2014 (300) E.L.T. 262 (Tri.-Mumbai).
4. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute that large scale evasion of anti dumping duty by the importer is established and also misdeclaration of the quantity and value of the goods. Now it is to be seen that whether the appellant Customs Broker is party to the evasion of such duty and misdeclaration committed by the importer. We have carefully gone through the various statement given by Shri P.P.Singh of M/s. SNM Agency, Shri Manish Singh an employee of the appellant and others. To understand the actual conduct of these persons related to CHA it is necessary to read their statements.
Statement of Shri P.P. Singh dated 5-6-2013 I say that on 1.5.2013, Shri C. P. Singh came to the office of S N M Agency at Belapur along with two other persons who were introduced as Shri Kailashchand Jain, the importer of the said consignment and Shri Neeraj Kumar Mishra, an employee of Shri Kailashchand Jain. They gave me the documents of the aforesaid consignment like bill of fading, packing list, invoice, ration card of one Mehta, I T Return of M/s. Jai Ambey Impex and balance sheet of M/s. Jai Ambey Impex. I did not verify the actual importer. The consignment consisted of Embroidery Machine Needles which attracted Antidumping duty of Rs 1.50 per piece. There were about 1,00,00,000 needles in the said consignment and the anti dumping duty was coming to Rs 1,50,00,000/-. However informed Kailashchand Jain that I will clear the consignment without payment of antidumping duty and for the same reason I demanded a sum of Rs 4,00,000/- from him. I also informed him to pay at least 70% of the said amount i.e. Rs 2,80,000/- in advance. I did not clear it through M/s. S N M Agency and contacted Manish Singh of Ws. Jai Ambey Impex to clear the said consignment. On 3.5.2013 Shri Manish Singh conveyed me telephonically that the document could not be filed due to non acceptance of the system of quantity of needles declared as the same was shown in boxes and not in pieces. On or about 05.05.2013 Shri C P Singh handed over Rs 2,80,000/- to me for clearing the said consignment without payment of anti dumping duty. On 6.5.2013 Manish Singh told me that a query has been raised by the Appraising Officer Mr. Mann regarding the quantity of sewing needles, what was the quantity per box, total number pieces etc. On 8.5.2013, I confirmed the number of pieces from the importer and learnt that the same was 1,00,000,00 pieces and I conveyed the same to o Manish Singh. The importer also conveyed that they would either re-export the needles and take the other items for clearance in home consumption or put the entire consignment in Bond. I conveyed the same to Manish Singh of M/s. Vinayak Shipping, who replied that he would not clear this consignment as the party has not come clean and misdeclared the needles. I further say that on 10.05.2013 Manish Sing handed over a letter addressed to Assistant Commissioner of Customs, informing that they were not acting as CHA for IAA the said consignment, which was submitted to the said officer and acknowledgement received was handed over to Manish Singh on next day. As the consignment could not be cleared I returned the amount of Rs. 2,30,000/- in two installments i.e. Rs 1,30,000/-in first time and Rs 1,00,000/- in the second time and I paid the said two installment in or around 15.05.2013.
Statement of Shri B P Singh dated 21-5-2013 On being asked , I wish to state, that, on 6th May 2013request of Shri Manish Singh, employee of M/s Vinayak Shipping Services, who is my cousin uncle I went to the Appraising Officer to know about the status of the import consignment pertaining to bill of entry no. 2045723 dated 6.5.2013, 1 learnt from the Appraising Officer Shri Mann that he has raised query, "PL CLARIFY THEQTY OF SEWING NEEDLES, WHAT IS THE QTY PER BOX, TOTAL NO. OFPCS ETC". I informer -Manish Singh about this query. Thereafter on 10.5.2013 1learnt from Manish Singh that there are 1,00,00,000 number of needles in the said consignment and the party is not willing to pay the anti dumping duty as required under the law. Therefore on 10.5.2013 Manish Singh and I went to Appraising Officer Mr. Mann and conveyed to him that the importer is not ready to pay anti dumping duty, on the needles and therefore they (M/s. Vinayak Shipping Services) are withdrawing from the work of clearance of the said import Consignment. A letter dt 10.05.2013 addressed to AC Customs, CFS Mulund issued by M/s.. Vinayak Shipping Services stating the above facts was handed over to the dispatch section. .On 17.5.2013 Manish Singh telephonically conveyed to me that officers of DRI Mumbai will come and examine the said import consignment on 18.5.2013 and requested me to be present during the said examination, to which I agreed and consequently on 18:05.2013. I was present during the course of examination of the said import consignment by officers of DRI, Mumbai.
Statement of Shri Manish Singh dt. 23-5-2013 On being asked I say that on 02.05.2013 Prem Prakash Singh (P P Singh) (9167347175), who resides on the same society in which I live and is also known to me since childhood called me on my mobile and invited me to his house (Flat No.13/305, Hirai Apartment, Manpada Road, Dombivli East), to which I acceded. At his house heshowed me a bill of lading no. HDMUNXAY 3011363 dated 18.3.2013, invoice no.YX20130395 dt 16.3.2013 issued by M/s. Shenzhen Pulaisdun Trading Co., Ltd., Chinain favour of M/s. Jai Ambey Impex and its packing list and told the same for customs clearance. Since I knew that he was into the business of customs clearance running in the name M/s. S N M Agency, I asked him as to why he was not clearing the import consignment of the aforesaid bill of lading from the said Agency, to which he answered that he has a fight with B P Singh who is his brother and also looking into the business of S N M Agency, and he does not want to bring this import consignment to the notice of his brother B P Singh. I told him that I will file the bill of entry but physically I will not go to the docks for the clearance, to which he responded in the positive. I asked whether he knew the IEC, holder personally, to which he replied in the positive. asked for all the documents like authority letter, PAN.card, ration card, IT Return and Sales Tax Certificate of the IEC holder, which was given to me by P.P. Singh.
On being asked that the description on the invoice is "500 PCS EMBROIDERYMACHINE NEEDLE", the number of cartons shown in the invoice is 200, the unit given in the invoice is Box and the total quantity shown is 20000, does not match, I say that I did not verify the same as did not, scrutinise it.
On 3.5.2013 P.P.Singh sent one of his staff to my office and took my sign and stamp of M/s. Vinayak Shipping services on the back side of the original bill of lading, arise took the original bill of lading which was to be submitted Hyundai Merchant Marine Pvt. Ltd., Andheri. The original Delivery Order in the name of M/s. Vinayak Shipping Services was received by P.P. Singh which was informed by him (PP Singh) P.P. Singh conveyed to me the IGM No. of the aforesaid import consignment through SMS. The IGM No. is 2289750 dated 1.4.2013. On 3.5.2013 I filed bill of entry, for the above import consignment online, which failed as an error was reflected on the system, which showed a wrong Port Code as well as the system was not accepting the declaration of needles in boxes and therefore on the same day (3.5.2013) I told P P Singh telephonically that the document could not be filed today due to the above two reasons of wrong port code and also that system does not accept the declaration of needles in boxes. P P Singh informed me that he will tell me the declaration of needles in pieces after confirming from the party and he told me to file it on the next working day, i.e. on 6.5.2013. I took out a print out of this import check list and gave it P P Singh at his residence on 4.5.13 and I also kept a copy with me.
In the morning of 5.5.2013 at around 11.00 AM B P Singh (mobile no.810868 8017) called me telephonically on my mobile and told me that there has to be a correction in the check list and that the needles have anti dumping duty and also that the notification in respect of antidumping duty has to be fed and in the entry at "500 PCS EMBROIDERY MACHINE NEEDLES", the unit has to be shown as pieces and not boxes as the invoice and packing list was quite confusing as it showed in boxes as 20,000. Then BP Singh told me telephonically that it is 20, 000 pieces instead of boxes and he has confirmed from the party that the correct entry is pieces.
I filed online bill of entry on 6.5.2013 at around 12.30 PM as per the said correction mentioned by B P Singh. The system showed an error of serial number in the notification of antidumping duty at the time of assessment he will get the same done from the A.O. Mr. Mann.
In the evening of 6.5.2013 I checked the status of the import consignment online found that the Appraising Officer Mr. Mann had made a query as follows, "PLO CLARIFHY THE QTY OF THE SEWING NEEDLES: WHAT IS THE QTY PER BOX, TOTAL NO PCS ETC.
In the evening of 6.5.201 I conveyed the same regarding query to P P Singh which he will call up the party and let me know.
On 7.5.2013 I confirmed from P P Singh about the status of the documents to which the party has not confirmed to the number of on my mobile and told me that there were 1,00,00,00 pieces and told me that the party would either re-export the needles and take the other items for clearance in home consumption or put the entire consignment in Bond and as per the requirement the party would clear the consignment in piecemeal basis. At this point I told P P Singh that I do not want to clear this consignment using my CHA Licence as the party has not come clean and mis declared the needles and told him to hand over the import documents to the party and I am withdrawing myself from the responsibilities as a CHA from this import consignment.
On 10.5.2013 1 gave a letter to P P Singh issued by M/s. Vinayak Shipping Services addressed to Assistant Commissioner, Customs, CFS Mulund, Mumbai informing him that we are not acting as CHA for Ws. Jai Ambey Impex for the said consignment since the importer was not ready to adhere to the advice for levy of antidumping duty on needles and told him to hand over the said letter to AC Customs Mulund. On 11.5.2013 he (P P Singh) brought the acknowledged copy of the said letter.
Statement of Shri Masnish B. Singh dated 12-6-2013 Further to my earlier statement dated 23.5.2013 I say that I have not verified the import documents bearing bill of lading no. HDMUNXAY 3011863 dated 18.3.2013, invoice no. YX20130395 dt 16.3.13 issued by M/s. Shenzhen Pulaisdun Trading Co. Ltd., China in favour of M/s. Jai Ambey Impex and its packing list, which were handed r over to me by P P Singh of M/s. S. N. M. Agency. We as CF-IA have failed in our duty to (verify the genuinity of the IEC holder of the above import consignment. We have also failed to verify the quantity of the goods declared by the importer M/s. Jai Ambey Impex and thereby failed to discharge the obligations as required under CHALR 2004.
However the same has been stated by mistake due to poor memory. Now I would like to like to clarify that on 02.05.2013 Prem Prakash Singh (P P Singh) (9167347175), who resides on the same society in which I live and is also known to me since childhood, called me on my mobile and invited me to his house (Flat No. B/305, Hirai Apartment, Manpada Road, Dombivli East), to which I acceded. At his house he showed me a bill of lading no. HDMUNXAY 3011863 dated 18.3.2013, invoice no. YX20130395 dt 16.2.20-13 issued by M/s. Shenzhen Pulaisdun Trading Co,, Ltd., China in favour of M/s. Jai Ambey Impex and its packing Ii at and told me to file the same for customs clearance. Since I knew that he was into the business of customs clearance running in the name M/s. S N M Agency, I asked him as to why he was not clearing the import consignment of the aforesaid bill of lading from the said Agency, to which he answered that he had a fight with B P Singh, who his brother and also looking into the business of S N M Agency, and he does not want to bring this import consignment to the notice of his brother B.P. Singh. 1 told him that I will file the bill of entry but physically I will not go to the docks for the clearance. to which he responded in the positive. I asked whether he knew the IEC holder personally. to which he replied in the positive I asked for all the documents like authority letter. PAN card. ration card, IT Return and Sales Tax Certificate of the IEC holder which was given to me by P P Singh.
On being asked that the description on the invoice is 500 PCS EMBROIDERY MACHINE NEEDLE". the number of cartons shown In the invoice is 200, the unit given in the invoice is Box and the total quantity shown is 20000. does not match. I say that I did not verify the same as i did not scrutinise it. I AM AWARE THAT IT IS MY DUTY TO VERIFY THE CORRECTNESS OF THE INFORMATION PROVIDED TO ME BY MY CLIENT AND THAT I FAILED TO EXERCISE DUE DILIGENCE IN THIS CASE.
On 3.5.2013 P P Singh sent one of his staff to my office and took my sign and stamp of M/s. Vinayak Shipping Service on the back side of the original bill of lading, and took the original bill of lading which was to be submitted to Hyundai Merchant Marine Pvt. Ltd" Andheri. The original Delivery Order In the name of M/s. Vinayak Shipping Services was received by P P Singh which was informed by him (PP Singh). P P Singh conveyed to me the IGM No. of the aforesaid import consignment through SMS. The IGM No. is 2289750 dated 1.4.2013. On 3.5.2013 I filed bill of entry for the above import consignment online, which failed as an error was reflected on the system which showed a wrong Port Code as well as the system was not accepting the declaration of needles in boxes and therefore on the same day (3. 5 2013). I told P P Singh telephonically that the document could not be filed today due to the above two reasons P. P. Singh informed me that he will tell me the declaration of needles In pieces after confirming from the party and he told me to file it on the next working day, i.e. on 2013. I took out a print out of this import check list and gave it P P Singh at his residence on 4.5.13 and I also kept a copy with me.
In the morning of 6.5.2013 at around 11.00 AM B P Singh (mobile no.8108688017) riled me telephonically on my mobile and told me that there has to be a correction in a check list and that the needles have anti dumping duty and also that the notification respect of antidumping duty has to be fed and in the entry at 500 PCS IBROIDERY MACHINE NEEDLES", the unit has to be shown as pieces and not :es as the invoice and packing list was quite confusing as it showed in boxes as 300. Then BP Singh told me telephonically that it is 20, 000 pieces instead of boxes and he has confirmed from the party that the correct entry is pieces.
I filed online bill of entry on 6.5.2013 at around 12.30 PM as per the said correction mentioned by B P Singh. The system showed an error of serial number in the notification of antidumping duty. I conveyed the same to B P Singh. to which he told me to remove the entry of notification of antidumping duty and at the time of assessment he at the same done from the AO Mr. Mann. I AM ALSO AWARE THAT ANY t/IPT TO INFLUENCE THE CONDUCT OF THE CUSTOMS OFFICER IS A VIOLATION UNDER REGULATION 13 OF CHALR 2004.
From the above various statement it is clear that Shri P.P. Singh of M/s. SNM Agency was ware of the intent of evasion of anti dumping duty by the importer and for which he contracted with the importer for a consideration of Rs.4lakhs. However as regards the appellant entire dealing was done by their employee Shri Manish Singh. From his statement corroborating with the statement of Shri P.P. Singh, till filling of Bill of Entry he was not aware of the wrong doing colluded by Shri P.P.Singh and importer. It is only when the Customs online system shown the discrepancy he comes to know and accordingly he discussed with Shri P.P. Singh about the correctness and when finally he understood that there is a misdeclaration and intent of evading huge amount of anti dumping duty by the importer, he withdrawn himself from the job of clearance of said consignment. On careful reading of all the statements nowhere it suggests that the appellant was aware of the intention of evasion of the duty. As regard the statement of Shri Manish Singh dt. 12.6.2013 from the language thereof it appears that he was coerced to admit his lapse however there was no change in the facts narrated by Shri Manish Singh in his earlier statement dt. 23.5.2013. It appears that once the statement dt. 23.5.213 was recorded there was no necessity to take a repeated statement. Therefore the statement dt. 12.6.2013 does not create a new picture of the entire fact particularly in the light of retraction by Shri Manish Singh vide Affidavit dt. 13.6.2013 As regard the charges of violation of various regulations alleged and confirmed by the lower authority, we find that the appellant before accepting the job of clearance of the goods has taken authority letter from the importer. From the authority letter and the verification of the signature by the bank, we do not see any difference in the signature. Moreover whether the signature is correct or not if there is any doubt the same cannot be established without getting it certified from the forensic expert which department has failed to do. Moreover there are other documents like certificate of registration from Maharashtra Sales Tax Department in favour of the importer M/s. Jai Ambey Impex also submitted therefore the identity of the importer is not under doubt. The entire objective of taking authority letter and KYC is for the purpose to establish the identity of the importer. In the present case the importer is very much existing all the time and he came forward to claim the goods imported therefore except mala fide intention on the part of the importer there is no doubt about the identity of the importer. As regard the dealing of CHA with the importer, we do not find anything malafide which led to offence of evasion of anti dumping duty. It is very important to note that when the appellant filed the Bill of Entry thereafter when they came to know about evasion of anti dumping duty and also there is a misdeclaration of quantity and value of the goods, he advise the importer for payment of anti dumping duty when he felt that the importer is not complying his advise. He immediately withdrawn himself as CHA vide his letter dt. 10.5.2013 i.e. within four days of filing Bill of Entry. As regard the mention by the Ld. Commissioner that the licence of the appellant was also revoked in the past, we are of the view that we cannot be influenced by any other case which is not before us. We have to consider the facts of the present case and if we found that in the present case no offence is established as per the facts and circumstances of this case then any other case cannot have a bearing in the present case. With our above discussion, we do not see that the conduct of the appellant is such that any of the violation of regulation as held by the Commissioner sustains. We are therefore of the considered view that from the facts and circumstances of the case, Revenue could not make out a case of revocation of the licence of CHA. We therefore set aside the order and allow the appeal.
(Pronounced in court on 07/11/216 ) (C.J.Mathew) Member (Technical) (Ramesh Nair) Member (Judicial) SM.
22Appeal No.C/89009/14