TaxTMI 
TaxTMI 
2012 (8) TMI 136
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....xported as 249.515 MT having a FOB value of Rs. 2,70,21,151/- whereas the goods actually exported were 24.211 MT having a FOB value of Rs. 26,19,458/-. The balance quantity were diverted into the domestic market thereby evading customs duty of Rs. 1,61,15,130/-. Similarly in the case of 21 export consignments, M/s. Khaitan Textile Mills P. Ltd. had declared the weight of copper ingots at 473.580MT having an FOB value of Rs. 5,33,30,482/- in the export documents whereas the actual quantity of goods exported were only 57.717 MT with an FOB value of Rs. 65,07,517/-, thereby evading customs duty amounting to Rs.2,38,40,636/-. The CHA engaged for these exports were the appellant M/s. Pandole Shahrukh & Co. 2.2 Investigation revealed that Mr. Sudhakar Yashwant More, Managing Partner of the appellant firm and two employees of the firm, Mr. Deepak Kanse and Mr. Anil Naik were fully aware of the short shipment of the goods and actively aided and abetted the fraudulent exports. They knowingly presented to the customs authorities check lists and shipping bills not corresponding to the goods actually exported and also presented the short shipped goods for inspection. As per the instructions o....
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....t 3 months in passing the impugned order after conclusion of the hearing by the adjudicating authority which shows his insensitivity and on this ground alone the impugned order should be set aside; (d) the statements of the appellant's employees were obtained under duress and the statements were retracted at the time of replying to the show cause notice in customs case; (e) the prosecution has not established conclusively that the partner and employees of the appellant were having knowledge about the mis-declaration in weight; (f) the CHA has no role to play in the examination/inspection of the goods by the Customs Officers; (g) Cross examination of the exporters/their representatives, though allowed, could not take place as they were not made available; (h) while deciding the customs offence case in respect of the fraudulent exports, though penalty was imposed on the appellant, the same has been stayed by this Tribunal vide order dated 23-6-09 which show that there is prima-facie merit in favour of the appellant; (i) The role of the Customs Officers in examination/inspection of he cargo were not examined and only the CHA has been put to dock in the matter; (j) The charge ag....
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....21943 both dated 5-9-03 and 2323994 dated 6-9-03 wherein the declared weight of brass ingots was 76.810 MTs whereas the actual weighty was only 7.521 MTs. Again in the case of S/B No. 2329210 dated 10-9-03, the declared weight was 2.329 MTs. In all these case the CHA was the appellant firm and the logistics support was provided by M/s. V-Excel Worldwide Logistics, a Division of M/s. Pundole Shahrukh and Co., the CHA. 5.2 Mr. Sudhakar More, partner of the CHA firm, in his statements dated 24-9-03 and 1-10-03 had, inter alia, admitted that his CHA firm has handled the export clearance of M/s Aditya and his CHA firm offered complete export services including transportation from factory to docks, warehousing of goods, if required, documentation, clearance, handling, packing, repacking and CHA work. Since the logistics support was provided by the CHA firm, they should have been aware of the full details of the consignments under export and the mis-declaration made with regard to the weight, number of pieces, FOB value of exports. This position has been admitted by Mr. Deepak Kanse, Docks Clerk of the CHA firm who had handled the work at JNPT port. In his statements given under section ....
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....tled position in law that "admitted facts need not be proved as held by the Hon'ble High Court of Madras in the case of Asstt. Collector of Customs vs. G. Ragupathy [1998 (98) ELT 50 (Mad)]. The Hon'ble High Court of Delhi in the case of Jasjeet Singh Marwaha vs. U.O.I reported in has held that the statements recorded under Section 108 of the Customs Act can be relied upon in the proceedings under the CHALR, 2004. 5.4 The Ld. Advocate for the appellant has argued that principles of natural justice has been violated as the appellants have been denied cross examination of the exporters and the shipping agent representative. This contention is misplaced and completely wrong for the reason that the case against the appellant is built on the statements recorded from their own. Partner and employees who have clearly admitted to aiding and abetting the fraudulent acts committed by the exporters. The statements of the exporters/shipping agent are not the sole basis for arriving at the finding about the liability of the appellants and therefore, denial of cross examination of the exporter could not be said to have adversely affected the interests of the appellant to prove his bonafide. 5.....
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.... There was no active involvement of the CHA in the commission of the offence. Those are not the facts obtaining in the present case. Since this is a case of active participation in a fraud perpetrated on the exchequer involving substantial amount of revenue, we are of the considered view that maximum punishment by way of revocation of CHA licence is justified. 5.8 The Hon'ble Bombay High Court in the Commissioner of Customs vs. Worldwide Cargo Movers [2010 (253) ELT 190 (Bom)], while dealing with a case relating to smuggling of cars, held as follows:- "17.............................................................. We are conscious that the punishment has be to be commensurate with the misconduct and that by revocation the respondent and its employees are going to suffer. At the same time, we van not forget that though it is the right of a citizen to carryon his business or profession, it is subject to reasonable restrictions and conditions. In the present case, those conditions were already stipulated. In the case of Arvind Bhagat (supra), the order of the Madras High Court has been left undisturbed by the Apex Court. It was a case where the CHA had failed to discharge his obli....
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....ed representative of the CHA for a consideration of Rs.150/- per shipping bill. In cases involving corruption there cannot be any punishment lesser than the maximum i.e., revocation of the license. No other lesser punishment can be contemplated in such cases. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The consideration received for the act of misconduct may be small or large. It is the act of corruption that is relevant, and not the quantum involved in such acts". (emphasis supplied) 5.10 In the OTA Kandla Pvt Ltd vs. U O I [2011 (269) ELT 457] the Hon'ble High Court of Gujarat was considering a case of sub-letting of licence, non-maintenance of statutory records, obtaining customs pass for non-employees etc. While upholding the revocation of CHA licence, the Hon'ble High Court held as follows:- "14. In view of the above principles laid down by the Hon'ble Supreme Court in various judgments, it clearly transpires that the judicial review of administrative action or of proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable, irrational or suffering from any procedural....