Custom, Excise & Service Tax Tribunal
M/S Uniyal Cargo Movers Pvt. Ltd vs Commissioner Of Customs (Export), Jnch ... on 11 May, 2015
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. C/86856/13 WITH APPLICATION NO. C/CO/91102/13 (Arising out of Order-in-Appeal No. 12(Adj/Exp)/2013(JNCH)/EXP-01 dated 23.01.2013 passed by the Commissioner of Customs (Appeals), JNCH, Nhavasheva.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
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 : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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M/s Uniyal Cargo Movers Pvt. Ltd.
: Appellant
Versus
Commissioner of Customs (Export), JNCH Nhavasheva
: Respondent
Appearance
Shri Prashant Patankar, Advocate
: For Appellant
Shri M.K. Sarangi, Dy. Commr. (A.R.)
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 11.05.2015 Date of Decision: 11.05.2015
ORDER NO.......................................................
Per: Anil Choudhary:
The appellant is a CHA and filed the present appeal being aggrieved with the Order-in-Appeal dated 23/01/2013 passed by the Commissioner of Customs (appeals), whereby the penalty imposed on the appellant of Rs. 50,000/- under Section 114(iii) of the Customs Act, 1962, allowing the appeal in part, the Commissioner (Appeals) have reduced the penalty to Rs. 30,000/-. Being aggrieved the appellant is in appeal before this Tribunal.
2. The appellant CHA filed 5 shipping bills on 11.09.2009 on behalf of merchant exporter M/s A. S. Exports having IEC number 0304014834, having its office at Vasai-West, Thane. The consignment said to contain Indian Hand Tufted Woollen Floor Covering Carpets and Indian Floor Covering Carpets. The said consignments was passed by the Examiner of Customs and let export order was issued on 16/09/2009. Subsequently the said consignments were detained and subjected to 100% examination. From the show-cause notice it appears the Customs Bottle seal and the Agent Bottle seal where found intact at the time of second examination. In the course of second examination conducted under the supervision of the Dy. Commissioner of Customs (exports), at the CFS, actually the carpets was found to be of lesser size than that declared of the carpets in the 5 shipping bills. The details of shortage in the given below in table.
Sr. No. Shipping Bill No. & Date Area declared (in Sq. Ft.) Actual area found on examination (in Sq. Ft. )
1. 7679001/11.09.2009 5442.386 3179.44
2. 7679003/11.09.2009 6405.764 4288.38
3. 7679004/11.09.2009 6234.078 3674.593
4. 7679007/11.09.2009 6288.867 3932.197
5. 7679009/11.09.2009 7434.26424 6466.48
3. The total FOB value of all the 5 consignments consisting of 301 rolls of woollen and polyster carpets was declared at Rs. 72,50,350.45 and combined declared area of 31805.35924 square feet and the total drawback on the said 5 shipping bills was Rs. 8,90,053/-. In response to the summons dated 22.12.2009 Sri Anish Shah proprietor of the exporter appeared and his deposition was recorded wherein he admitted that the subject consignment was first shipment by him in the name of A.S. Exports. Further the firm was setup few years ago and further undertakes to file the Bank-details. He further stated that he had engaged the appellant CHA for the clearing on their behalf. Further the goods were to be exported to Germany and it was further stated that as per agreement between the exporter and the consignee the mode the payment was direct. As it was found that the export was mis-declared (carpet area of the carpets) accordingly the same was found to be liable for confiscation. It is further relevant that the export benefit is related to the size of the carpet exported from India (i.e. per sq. ft.). To ascertain the value of the carpets the services of approved valuer was taken by the Revenue. The said valuer reported that the value as declared per unit square feet should be accepted by the Department. However on the basis of actual quantity found on examination, the value of consignment should be re-calculated. Accordingly that the said value was determined and duty drawback worked out at Rs. 5,90,418/. According the Revenue felt that the exporter had mis-declared the value of the consignment and the same appear to be liable to confiscation and as such show-cause notice dated 24.11.2010 was issued as to why not the said consignment be confiscated and the permission granted under Section 51 (L.E. order) of the Act be not cancelled and further as to why not the goods be of the declared value be not confiscated and further the present appellant-CHA penalty was proposed on him and in terms of section 114(i) and 114(iii) and 114AA of the Customs Act, alleging aiding and abetting on their part.
4. The appellant CHA appeared and contested the show-cause notice stating that they had filed the shipping bills on the basis of relevant documents and information furnished by the exporters. The quantity and the value declared was on the basis of commercial invoice given by the exporters. Further the employee of the CHA in the statement recorded on 4.5.2010 had stated that the documents received from the exporter and the checklist generated online from the CHA office. The employee further stated by the number of pieces/rolls at the time of carting was also counted and the same was found correct. However the container was delivered at the CFS date by the exporter. In the course of physical examination, the Customs Examiner also did not notice any discrepancy. Further the CHA had filed the shipping after verifying the credential of the exporter, under proper authorisation. Further no allegation is made by the exporters implicating the CHA, in the mis-declaration of the area of the carpets under export. The show-cause notice was adjudicated by the common order dated 24.01.2012 whereby the let export order was cancelled. The total area of the carpets was found at 21,541.09 sq. ft. and same was held liable to confiscation under Section 113(iii) of the Act. The exporter was further given opportunity to redeem under Section 125 by paying fine of Rs. 10 lacs with further permission to export the consignment after ensuring that the quantity and the value are correctly mentioned in the shipping bill. As regards the present appellant a penalty of Rs. 50,000/- was imposed under Section 114(iii) of the Act by recording finding that at no stage the CHA could produce the authorisation given by the exporter for filing the shipping bills and further there is slackness on the part of the CHA.
5. Being aggrieved the appellant had filed appeal before the Commissioner (Appeals) vide the impugned order was pleased to allow the appeal in part by reducing the penalty from Rs. 50,000/- to Rs. 30,000/- recording finding that this being the first consignment of the exporter to be handled by the appellant CHA, the appellant should have been more careful about the quantity, value and description of the goods declared by the exporter in the invoices. Further the CHA was not having authorisation from the exporter and as such the penalty was confirmed in part. Being aggrieved the appellant is in appeal before this Tribunal.
6. The Counsel for the appellant urges that the CHA was not required to open the packing and verify the correctness of the sq. ft. as declared in the shipping bills/documents. It is further urged that the fact of authorisation was stated at the very first opportunity when the statement of the employee was recorded and the same was corroborated in the statement recorded by the Revenue of the exporters. Further the exporter have accepted his Act of mis-declaration, solely attributable to him. No fact of aiding and abetting is, found in relation on any other misgiving. Further the value declared of the carpet (per sq. ft.) have been found to be correct. Further the finding in the impugned order is advisory in nature, that the CHA should be more careful. No lapse in particular is pointed out in discharging the duty of the CHA. Further in view of the consignment duly examined by the Customs Officers and let export order issued, no misgiving can be alleged on the part of the CHA for any discrepancy found on 2nd examination. As regards the ruling relied by the Commissioner (appeals) in the case of Vishwanath Shipping Agency (P) Limited 2011 (270) ELT 140, it is stated the same is not relevant as in that case the exporter was found non-existent and fictitious. Such facts are not obtaining in the present case. So far the other ruling is concerned relied upon by the Commissioner (Appeals) in Sundaram Finance Vs. Commissioner of Customs 2012 (279) ELT 220 (Tri. Mad.) the same is in respect of penalty on the exporter and does not support the case of the Revenue. Further the learned Counsel relies on the ruling in the case of Commissioner of Customs, Mumbai Vs. M. Vasi 2003 (151) ELT 312, wherein in the case of post parcels, no significant difference in the declaration was found between the watch moments and watch modules and the value declared as per invoice. Abetment presupposes knowledge of the proposed offence and also presupposes benefit to be derived by the abettors therefrom. In the present case there being no such finding, as such the allegation of aiding and abetment does not stand. The appellant further relies on the ruling in the case of Commissioner of Customs Vs. Moriks Shipping and Trading Pvt. Ltd. 2008 (227) ELT 577 it was held that the custom house agent is not required to go into the authenticity of the declarations made by exporter in the export documents. In the absence of evidence of CHA having abetted in offence, penalty was held not imposable. His job is confined to submission of the documents given by the exporter. Whether the goods presented for export was in accordance with the declaration was a fact known to the exporters, but not with the CHA. It is a question to be addressed by the Customs Authorities on examination of the goods. Relying on the ruling in the case of Akansha Enterprises the Tribunal had held, CHA is not required to go into the authenticity of the declarations made in the export documents. His job is confined to submission of the documents submitted by the exporter and also identify the exporters to the Customs Authorities. In the present facts and circumstances also the CHA have been able to identify the exporters and further no mis-declaration is found to have been made with the aid of the CHA. That he prays for setting aside the penalty imposed in full.
7. The learned A.R. relies on the impugned order. The respondent have also filed cross objection, taking the ground that as the exporter is found to be guilty of mis-declaration the appellant CHA being his agent is also responsible for the same. Accordingly prays for confirming the impugned order.
8. Having heard the parties and gone through the records, I find that under the facts and circumstances that is no lapse on the part of the CHA. The CHA acted on the instructions of the exporter and documents given. He had identified exporter before the Customs Authorities. Further the said exporters have accepted the responsibility for the mis-declaration in the sq. ft. of the carpets under export. Further no elements of aiding and abetting have come on record. Further in view of the goods subjected to examination and the L.E.O. issued, the CHA cannot be held responsible for lack of duty in mis-declaration of sq. ft. area of the carpets under export, which cannot be made out by visual examination and the same have come on record only at the stage of second examination where the consignment was opened and 100% measured. Thus, I hold that the CHA is not guilty of aiding and abetting. I further hold that the CHA had the authorisation which it appears was not produced due to clerical error, but the fact has been stated and accepted by the exporter. That the penalty retained in the impugned order is set aside.
9. Thus, the appeal is allowed. The cross objection of Revenue is dismissed. The appellant will be entitled to consequential benefits in accordance with law.
(Pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 9