TaxTMI 
TaxTMI 
2011 (3) TMI 246
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....ducer and exporter. Authorities at Nhava Sheva port found that DHL knowingly filed shipping documents showing M/s. Michelin Asia Pacific Import Export (HK) Ltd., Hong Kong (MAPIEHK) as exporter whereas the corresponding original documents had shown the exporter to be Transityre,BV,Netherlands(TBV). Other factors remaining same when MAPIEHK was shown as exporter entitled the consignment for assessment of lower ADD. Thus DHL facilitated the importer clear consignments of tyres on payment of a lower rate of duty not admissible to the goods and evade significant amount of duty. 2. The Commissioner of Customs (Export) Jawaharlal Nehru Custom House, Nhava Sheva vide letter dated 20.10.2010 had informed the Commissioner of Customs (General) New Custom House, Mumbai that a case of evasion of ADD by MITPL involving willful suppression of facts, mis-statement, manipulation of documents based on advice given to the importer by DHL had been detected. DHL had violated the code of conduct prescribed under CHALR. Pursuant to the above report, the Commissioner of Customs (General), Mumbai vide Order No.25/2010 dated 22.10.2010 prohibited DHL from transacting any CHA related business in M....
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....n was a drastic action and no exceptional circumstances existed warranting such an order. The impugned order recorded details of the correspondence within the organization which clarified the correct provision of the notification prescribing ADD which applied to the goods involved and the correct course of action required to be followed by the importer. The impugned order wrongly ordered suspension of the licence. The Commissioner relied on a statement of Shri Sanjeev Nayak (Manager Supply Chain) of MITPL as per which changes in the documents had been made after discussion with the appellant. This statement was not substantiated nor the appellant given an opportunity to cross-examine him. The impugned order wrongly held that the appellants were aware of the corrections carried out in India by the importers. The Commissioner wrongly found that the documents seized from the computer of the appellants were original (one set) and manipulated (another set). The customs authorities had released the consignment against the shipping documents produced by the CHA. The allegation that the appellants had full knowledge of the manipulation and was aimed at evading due amount of ADD was an erro....
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...., the impugned goods would be subject to duty in terms of Sl. No. 17 of the notification. The Commissioner also recorded in para 10 of the order that DHL had refused the suggestion by MITPL that DHL may make appropriate correction of the shipping documents. We are shown the internal e-mail wherein the staff of DHL were directed not to carry out corrections of the documents. This was in August 2010. It is submitted that there was no evidence of the appellant s carrying out any such corrections. The impugned order was passed on a wrong basis that DHL manipulated the documents. The order was therefore liable to be set aside. 4.1 Further, as per the Regulation 20 (2), the Commissioner of Customs is empowered to suspend the licence of CHA, where an enquiry against such agent is pending or contemplated, in appropriate cases, where immediate action is necessary, within 15 days from the date of receipt of a report from the investigating authority. This was subject to the condition that the grounds enumerated in (a), (b) and (c) of Regulation 20 (1) existed which was not the case in the instant case. In the instant case, there was no investigation report received by the Commission....
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....ntimated the importer that the impugned imports attracted higher ADD unless the notification was amended. She invited our attention to internal correspondence of DHL between Shri Danny Fernandes and Shri Amita Shedge endorsing copy to other executives wherein it was advised as under. Kindly take a print of the revised B/L, invoice and packing list of Michelin job 675326 attached herewith. Plz discard and throw all B/L, invoices & packing list copy sets sent to NSA in the docket and replace them by these. Please note that I m also sending a set in today s afternoon dispatch however, it will reach NSA in the evening only. Hence request you to kindly do the needful. 6.1 She also draws our attention to a communication from Shri Suresh Narayanan to Shri Danny Fernandes wherein he had directed his colleagues that all previous documents were to be hand torn and destroyed . The learned SDR submitted that the correction in the original documents was carried out to enable the importer avail the concessional rate initially DHL had intimated MITPL as not admissible to the consignment involved. 7. The learned counsel for the appellant ....
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...., but ample reason had been given in the order itself indicating that he had bona fide exercised his power under sub-regulation (2) of Regulation 21. When the wide powers given to the Collector of Customs had not been misused or arbitrarily used and when such power has been exercised for immediate action, the Court is debarred from interfering with the order. Therefore such case is not helping the petitioner but the respondent authority of course, in the fact situation. (b) Collector of Customs Vs. Jeena and Company - 1990 (45) ELT 72 (Cal.) In this judgment, the Hon ble High Court of Calcutta observed that while construing the said rule this court if introduces something which the rules did not provide by allowing a hearing to the parties concerned, to our mind, that would defeat all purposes of the said rule and sub-rule of exercising powers in cases of emergency, inasmuch as it would paralyze the administrative process or frustrate the need of utmost promptitude in cases where necessity so demands for exercise of such emergent power . It was submitted that the Hon ble High Court was interpreting the provisions corresponding to the present Regulation 20 (2) of....
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....e Hon ble High Court held that an order passed under Regulation 20 (2) for suspending the license pending proceedings under Regulation 22 (1) could not be construed as a punishment and the power conferred under Regulation 20 (2) empowered the Commissioner to pass an order of suspension pending enquiry having satisfied that immediate action was necessary for the reasons mentioned in the order itself. 8. We have considered the various case laws cited by the learned SDR. We find that all the judicial authorities cited are relevant to the case in hand and support the order challenged by the CHA. 8.1 We now discuss the citations relied on by the learned counsel for the CHA. (a) Navin Clearing and Forwarding Agency P. Ltd. Vs. Commissioner of Customs (G), Mumbai 2010 (250) ELT 372 (Tri.-Mumbai) In this interim order, the tribunal found that if the Commissioner of Customs (General) New Custom House, Mumbai had suspended the CHA license on the ground that Commissioner of Customs, Jaipur had suspended the operation of that licence within the jurisdiction of that Commissioner, the suspension order was issued for a reason relatable to the permission gra....
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....tted forging the shipping documents and paid Rs.5 crore towards part of the differential ADD due from them and that such goods valued at Rs.5.8 crore had also been seized. He observed the sequence of events and involvement of staff of DHL and MITPL in the offending transactions in the paragraphs 8 & 9 of the order reproduced below. 8. On 8.8.2010, Operations Manager of DHL Lemuir Logistics P. Ltd. (DHL in short) Shri Suresh Narayanan by email requested for clarification from the Customs Brokerage and Clearance division of his company. Shri S. Subash, Manager, Compliance and Training, by his two mails dated 9.8.2010, clarified that since the goods are not supplied by MAPIEHK, the correct Sl. Nos. would be 13 and 17 for goods from China and Thailand respectively. Further, he categorically mentioned that if the client is insisting on Sl. No.16, wherein the goods are originating and exported from Thailand where the producer is Michelin Siam Co. Ltd. and exporter is Transityres BV Netherlands which will fall under Sl. No.17, to get the notification amended accordingly as per their new documentation pattern. 9. In his statement recorded on 18.10.2010, Shri Sanjeev Nay....
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....ments submitted to the Customs, had in their possession copies of original and manipulated documents and had advised the importer to evade payment of anti dumping duty. Further it was also reported that the CHA has grossly violated Regulation 13 (d) of CHALR 2004 in as much as they have not only failed to advise their client to comply with the provision of the Customs Act but instead willfully colluded in perpetrating the fraud. The CHA has also acknowledged that the original invoice, bill of lading, sea way bill and manipulated copies of invoice, sea way bill, bill of lading were available with them and that amendments were made to the said documents without any endorsement or seal of the Shipping Line. 6. From the above, it is evident to me that the CHA M/s. DHL Lemuir Logistics P. Ltd., has willfully, with full knowledge, have manipulated invoice, packing list, sea way bill, bill of lading, in order to evade payment of anti dumping duty by with holding original and manipulated copies of the documents. The CHA has thus deliberately advised the importer to evade payment of anti dumping duty and has also failed in discharging his obligation as a CHA at Mumbai Customs as r....
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....gth of amended shipping documents filed by DHL. Regulation 13 (d) of CHALR reads as follows: REGULATION 13.?Obligations of Customs House Agent. - A Customs House Agent shall (d) advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs; This provision clearly mandates that the CHA intimates the department any violation committed by the importer to obtain a benefit not authorized by law. In finding a violation of this provision, the fact whether the correction was carried out by the CHA or by MITPL has no relevance.The impugned order rendered a finding that DHL manipulated invoice, seaway bill and bill of lading in order to evade ADD by withholding original and manipulated documents. The finding that DHL manipulated invoice, seaway bill and bill of lading is not supported by evidence. However, in the paragraph 5 which precedes this observation contains the finding that the CHA had full knowledge of manipulation of documents submitted to the customs and that it had in its possession copies the original ....