TaxTMI 
TaxTMI 
2016 (5) TMI 499
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....No. 9393549, dated 22-2-2011, EDI print out of Shipping Bill No. 9328952, dated 3-2-2011 bearing name and Licence Number of appellant as Customs House Agent. Seized container was stuffed from factory and destined to Port Jebel Ali, Dubai. On examination, the container was found to contain 9540 kg of Red Sanders Wood Logs an item prohibited for export. The said container of Red Sanders Wood Logs valued at Rs. 1,04,94,000/-. In the shipping bill the goods declared was "Printed Packaging Material" and shows to have stuffed from M/s. Sweet Industries India Pvt. Ltd., Mulund under IEC No. 0389038083. Earlier one more shipping bill No. 9328952, dated 3-2-2011 was filed under the same IEC No. and CHA No. 11/693 of M/s. Daroowalla Bros. & Co., that the said shipping bill was generated in the EDI system ICES, JNPT, Nhava Sheva and subsequently purged due to no follow up by the exporter/CHA and no export took place against the said Shipping Bill. 2.1 The preliminary enquiries indicated that forged documents and fake container seal were used in the said attempted export (Shipping Bill No. 9393549, dated 22-2-2011) that Shri Sanjay Patil and Shri Ravindra Chaudhari, DEO, CMC, EDI Centr....
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....his statement Shri Parvez Irani admitted his failure to comply with the instructions mentioned in Facility Notice No. 41 of 2009, dated 10-7-2009 and Public Notice No. 10/2010, dated 3-2-2010, according to which CHA is duty bound to verify Shipping Bills and Bills of Entry filed in EDI System on their PAN number and inform the department in case any discrepancy is noticed. It was alleged that CHA had not followed the said procedure; that CHA in this case allowed Shri Shailesh Bhanushali, an unauthorized person to routinely handle the export documents and even file the Shipping Bills which shows utter failure of the CHA to control/supervise the action of its employee. It was also alleged that CHA has not exercised due caution nor have they taken any measures to prevent the mis-use of their CHA Licence. 2.2 In view of the above investigation, licence of the appellant was placed under suspension vide order No. 01/2011, dated 5-4-2011 and thereafter inquiry proceedings were conducted. Various articles of charges were framed under Regulations 13(b), 13(j), 13(n) and 19(8) of CHALR, 2004. On the above charges inquiry officers submitted their inquiry report vide letter dated 23-7-....
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....roven Articles of charges reported in the enquiry report, the Adjudicating Authority ordered for revocation of the Licence of the appellant. Aggrieved by the said Adjudication order, the appellant are before us. 3. Shri S. Subba Reddy, ld. Counsel for the appellant made submissions on merit as well as on limitation. On merit ld. Counsel submits that the appellant is not at all involved either in the documentation or in the clearance of alleged, attempted smuggling of Red Sanders Wood Logs. He submits that from the entire enquiry of the present CHA case, it is revealed that the persons involved in the documentation are appellant's temporary and unauthorised employee Shri Shailesh Bhanushali, CMC employees Shri Sanjay Patil and Shri Ravindra Chaudhari. It is his submission that these persons have colluded and conspired the entire job of documentation and filing thereof in CMC. Shri Shailesh Bhanushali is a temporary employee of the appellant and he is not authorised to submit the documents on behalf of the appellant at CMC. When this is so, the employees of the CMC were also not supposed to accept the documents from an unauthorised employee. Shri Irani, partner of the appella....
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....Parvez Irani dated 19-12-2012 who stated that at the material time details of only those shipping bills which are filed online would be available. In the present case the shipping bill was filed at the service centre for which Thoka number is required, without which CHA would not know that such shipping bill was filed. This is because Customs House EDI system did not give the list of shipping bills which are filed at the Service Center. Only those shipping bills filed online get displayed on the system during the relevant period. For the Shipping bills filed at service centre, the Thoka number will have to be entered to see the status of such shipping bills. In case of M/s. Sweet Industries India Pvt. Ltd., the documents were filed without the knowledge of the appellant and on the basis of false documents, such shipping bill has not been reflected in the system. Therefore, it cannot be said that the appellant have not discharged the obligation cast on them under the said facility notice and public notice. The ld. Counsel submits that in view of the above explained facts which are part of the proceedings before the enquiry/presenting/adjudicating authorities, it is established that ....
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....ty & Intelligence Agency Ltd. [(2004) 3 SCC 250]. (c) Fairgrowth Investments Ltd. v. Custodian [(2004) 11 SCC 472]. (d) Roop Singh Negi v. Punjab National Bank & Othrs [(2009) 2 SCC 570] (e) Sharp Logistics Pvt. Ltd. v. Commissioner of Cus. (General), Mumbai [2012 (286) E.L.T. 704 (Tri. - Mumbai)] (f) Sharp Logistics Pvt. Ltd. v. Union of India [2013 (290) E.L.T. 321 (Bom.)] (g) Commissioner v. Sharp Logistics Pvt. Ltd. [2014 (308) E.L.T. A48 (Bom.)] (h) Concorde Zoom v. Comm. of Cus. C. Ex. & Service Tax, Hyderabad [2013 (291) E.L.T. 298 (Tri. - Bang.)] (i) Suhas H. Pophale v. Oriental Insurance Company Limited and its Estate Officer [(2014) 4 SCC) 657] (j) A.M. Ahamed & Co. v. Commissioner of Customs (Imports), Chennai [2014 (309) E.L.T. 433 (Mad.)] (k) Commissioner of Cus. (Sea Port Import), Chennai v. CESTAT, Chennai [2014 (310) E.L.T. 673 (Mad.)] 4. Shri S.J. Sahu, ld. As....
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....f the appellant who filed the shipping bill in respect of consignment which contain Red Sanders Wood Logs. Further, statements of two employees of the CMC service centre, where the export documents are presented, i.e., Shri Ravindra Chaudhari and Shri Sanajay Patil were also recorded. The important portion of various statements are extracted below :- Examination Statement dated 19-12-2002 of Parvez Irani : Q.1 I am showing you the statement made by you on 24-3-2011 before the investing officers under Section 108 of the Customs Act, 1962. Please go through the statement and state whether you accept and confirm the contents of the said statement? A.1 I have read the above said statement and I state that I confirm the contents thereof except the portion relating to the Facility Notice and Public Notice on page 2 of the said statement. Regarding the Facility Notice and Public Notice, I wish to state that at the material time, details of only the shipping bills which are filed on line would be available and if any shipping bill is filed by the any unauthorized person by submitting the forged or fabricated documents, the CHA will not be able to know t....
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....with the exports attended by the CHA firm for M/s. PDK International in December, 2010. The last page contains the name, IEC Number as well as the Invoice Number of M/s. PDK International. He requested that the said letter and the documents may kindly be taken on record as defence exhibits. Q.10 Did you attend to any export or import clearance of M/s. Sweet Industries India Pvt. Ltd. at any time in the past. A.10 No, I have not attended to any export or import consignment of M/s. Sweet Industries India Pvt. Ltd. Examination dated 23-8-2012 of Shri Shailesh Bhanushali : Q.4 Since how long you were working for M/s. Daroowalla Bros. & Co.? A.4 I was working for M/s. Daroowalla Bros., & Co. for 6 to 7 months prior to the case detected in February, 2011. Q.6 Whether you were attending to any other work apart from loading and unloading of export cargo? A.6 Yes. I was submitting documents for check list for shipping bills for M/s. Daroowalla Bros. & Co. at the CMC counter. Q.7 Did you have any Customs pass? A.7 No, I did not have Customs pass. Q.8 Did you ....
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....hat the invoice was received by you on fax and the declaration was prepared by you without the knowledge of Shri Parvez Irani? A.6 Yes. It is correct. I have given all the details as to how I received the invoice and the fact that I had prepared the declaration after taking out a copy of the Page 4 of declaration relating to another consignment of M/s. PDK International and submitted such documents to the CMC centre. I say that my statement dated 21-3-2011 is correct. Q.8 Are you aware that verification of check list can be done only by an authorized employee holding the Customs pass? A.8 Yes. Q.9 Is it correct that along with the documents required to be submitted for check list, the Xerox copy of the customs pass of the authorized employee also required to be enclosed? A.9 Generally Xerox copy of the Customs Pass is required to be enclosed with the documents. However, at times the documents would be accepted even without such copy of Customs pass especially when the CHA employee is known to the CMC staff or when a person is introduced to them by the CHA. Q.11 Is it correct that you have also given....
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....lesh Bhanushali to the CMC and the aforesaid employees of the CMC accepted the documents. In the statement of Shri Shailesh Bhanushali, initially stated that filing of shipping bill was as per direction of the appellant partner and same was in their knowledge. However subsequently he categorically denied that the appellant is not aware of filing of shipping bill. Shri Parvez Irani, partner of the appellant in his examination and re-examination categorically stated that he is nowhere concerned with the alleged smuggling of Red Sanders Wood Logs. The shipping bill was not submitted on his direction Shri Shailesh Bhanushali is temporary employee and is not authorized to submit the documents to the CMC. He being unauthorized person, CMC should not have accepted documents. We find that the declaration filed along with shipping bill No. 9393549, dated 22-2-2011 contained last page wherein signature of the partner of the appellant appeared, is in respect of some other shipping bill for consignment relating to PDK International and it was admitted by Shri Shailesh Bhanushali, that these last page is photocopy of document of some other consignments. On perusal of the documents, we find it i....