TaxTMI 
TaxTMI 
2016 (12) TMI 893
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....ot been charged as an abettor anywhere in the show cause notice and penalty has been imposed upon him by the Adjudicating authority while passing a very sketchy order. It is also the case of the Learned Consultant that when M/s P.N. Bhattacharjee & Sons (CHA) has been let off then his client should also be let of on the principles of equity. Learned Consultant relied upon the following case laws in support of his arguments:- (i) Abbas A Master Vs. CCE Raigarh [2014 (306) ELT 625 (Tri Mumbai)] (ii) Blossom Grocery & Food India Pvt. Ltd. vs. CC (Export) [2014 (302) ELT 267 (Tri. Mumbai)] 2.1. Learned Consultant further argued that investigation was faulty & no show cause notice was issued to the main exporter. That in view of case law Vikram Cement (P) Ltd Vs CCE Kanpur [2012 (286) ELT 615 (Tri. Del)] statements of the appellant can not be used against him in a half hearted investigation. That simply seeing loading of Red Sanders wood into the containers can not make his client an abettor as per Apex Court's order in the case of CC Lucknow Vs G.P. Jaiswal [2015 (318) ELT 610 (S.C)]. Learned Consultant made the bench go through Para- 9 of this case law in support of his....
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....the irregularities mentioned in Sec 113 of the Customs Act 1962 to invite confiscation & penalty. That his client is also not the abettor for imposing penalty under Sec 114 (i) of the Customs Act 1962 and also that appellant has been charged as on exporter. 4.1. To appreciate the facts and the role played by the appellant it will be relevant to go through the statements dt 4/3/08 & 5/3/08 of the appellant, given in Para- 5.2 & 5.3 of the show cause notice dt 12/09/08, reproduced below:- "5.2 Shri Mahendra Nath Laha was examined under Section 108 of the Customs Act 1962 on 04/03/08. He stated interalia that: (a) he used to collect export-import clearance job and got the job done by a CHA as he did not have the CHA licence; (b) on 28.01.08, when he was in Customs House, Kolkata, two men came to him and offered clearance job (including CHA, transport, container and shipping arrangement) of two export consignments of cotton and the rate was settled for Rs. 40,000/- for the two consignments; (c) Then he contacted one Shri Mihir Bose of M/s E.C. Bose for containers and contacted M/s P.N. Bhattarcharjee, CHA for clearing; (d) Out of the two men, name of one is Raja....
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.... of that he paid Rs. 8000/- to the CHA, Rs. 10,000/- to the transporter and Rs. 6500/- was paid for landing charge; (f) He was paid only Rs. 20,000/- for the second container: however, he paid Rs. 7500/- to the CHA, Rs. 9000/- to the transporter and Rs. 6500/- for landing charge for the second container; (g) He knew Mihir Das for the last 7 years as a freight forwarder. When he was asked to give the telephone number of Raju Babu, he stated that Raju Babu did not give him his phone no. He also stated that when required Raju Babu used to contact him, however he did not save the number of Raju Babu." 4.2. Above statements were given by the appellant after clearance of goods under the said shipping bills but before container No. TGHU 7762200, with respect to shipping Bill 544835 dt 19/2/2008, was brought back from Colombo, Srilanka on 14/3/08 & examined at N.S. Dock Kolkata on 15/3/08. Voluntary statements dt 4/3/08 & 5/3/08 of the appellant indicate that appellant was supervising all the operations regarding clearance of the said containers, including payments required to be made a various stages on behalf of some one. He also mentioned the exact 140 number of cotton bales....
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....hat charge in Para- 13 (a) of the show cause notice dt 12/9/08 suggest that appellant is being treated as an abettor & not as an exporter. Simply due to mentioning the appellant's name in Para-15 of the show cause notice dt 12/9/08, it can not be said that he has been treated as an exporter when the evidences relied upon in the show cause notice clearly point to the abatement of the appellant. 4.4. Argument of the appellant's consultant that on the principles of equity also no penalty is attracted against his client as other noticees have been let off. From the records it is observed that the only other noticee in the show cause notice is the CHA. Appellant has not stated anywhere that CHA was also aware of the stuffing of Red Sanders Wood in the containers. There is also no other trace of evidence that CHA had knowledge of Red Sanders Wood being stuffed in the containers whereas on the contrary appellant had such knowledge from the date of stuffing of containers. Further Sh. S. Bhattacharjee of the CHA clearly stated that appellant has got clearance jobs and monitored the entire work of clearance including arranging containers & making payments on behalf of the exporter M/s Sib....