TaxTMI 
TaxTMI 
2019 (12) TMI 791
X X X X Extracts X X X X
X X X X Extracts X X X X
....HCM5826C) issued by the Commissioner of Customs, Custom House, Kolkata under Regulation 9(1) of CHALR, 2004 (now Regulation 7(1) of CBLR, 2013) to transact customs clearance work within the jurisdiction of Kolkata Customs Commissionerate. The validity of licence is up to 27.07.2022. 3. On the basis of an offence report dated 26.12.2006 from Directorate of Revenue Intelligence, Kolkata against the appellant received on 27.12.2016 in the office of Commissioner of Customs, Kolkata regarding old and used worn out clothing imported by different importers based in Panipat, Amritsar, Ludhiana and Delhi, which were handled by the appellant as Customs Broker, were found to be misdeclared in terms of weight resulting into evasion of substantial amount of Customs duty. The officers of DRI, Kolkata conducted searches at the various premises belonging to the appellant and transporters, which resulted into resumption of incriminating documents regarding misdeclaration of weight in respect of imported consignments of old and used garments. During investigation weight of seven live consignment of old and used imported cloth in 13 containers were physically verified by the officers of DRI Kolkata....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... redemption fine and personal penalty. The duty of Rs. 55.50 Lacs was also paid by the appellant towards the duty alleged to be evaded by the importer. 5. Shri Ratan Baidya, Weigh Bridge Operator in his statement recorded under section 108 of the Customs Act on 05.09.2016 and 07.09.2016 agreed to the fact that with the representative of the appellant he has manipulated the actual weight of containers and entered weight of cargo in the weighment slip as per the weight declared by the importer in invoice and bill of lading. He also stated that manipulated weighment slips were handed over to the representative of the Custom Broker and the actual weight of those containers were available in the computer installed at the Weigh Bridge. He also submitted that the manipulation in weight was being done for a small monetary consideration which was agreed by Shri Subhasish Bhattachariya, Director of the Appellant and Shri Debasish Bhattachariya and Shri Chandan Chatterjee also the employee of the appellant. 6. The enquiry conducted at the premises of transport revealed that the transported consignment of old and used clothing always used to be in between 25-26 M.T. on an average, but the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n hinges has sometime stated that the employee of the appellant company would be interacting with him regarding manipulation of the weight while on other occasion the name of Shri Subhasish Bhattachariya was mentioned by him. Further, Shri Ratan Baidya also categorically submitted in his statement that the Weigh Bridge remains non-functional most of the time during 2015- 2016 and therefore it would not have been possible for the Weight Bridge Operator to take the correct weight on computerized Weigh Bridge. In his statement dated September 5, 2016 Shri Baidya informed that another Weigh Bridge Operator was also there at the CONCOR CFS by name Shri Rahul Kumar and that the weighment slips would have be issued by either him or Shri Rahul Kumar, whoever was present at the relevant time, but his statement was not recorded by the DRI was recorded. In the circumstances it would not be possible to arrive at the conclusion as to who have issued weighment slips in absence of their signature. Five weighment slips which have been relied upon by the department bears no signature of the Weigh Bridge Operator. It is also on record that department has not produced remaining weighment slips other ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se. The concerned importer has filed Bill of Entry with all details including IEC codes. In the circumstances it will be incorrect to hold that the appellant was de facto importer. Merely because return of the summons with remark that importer concerned does not exist is not sufficient to arrive at the conclusion that the appellant has himself imported the consignment. 14. Learned Advocate has further relied upon the following case laws in support of the submission made hereinabove. (a) Mehul & Co. v. CC(General), Mum [2017 (357) E.L.T. 644 (Tri.-Mumbai)] (b) RSR Forwarders v. CCE, Delhi [2018 (364) E.L.T. 541 (Tri.-Del.)] (c) CC(General) v. KVS Cargo [2019 (365) E.L.T. 395 (Del.)] (d) Principal CC (General), Mum v. Unison Clearing (P) Ltd. [2018 (361) E.L.T. 321 (Bom.)] (e) Pragati Overseas Agency v. CC, Kolkata [2018 (363) E.L.T. 169 (Tri.-Kolkata)] 15. Learned Authorized Representative for the department, however, supports the impugned order and contends that appellant was involved in the manipulation of weight of the imported consignment in order to defraud the Customs Revenue. Accordingly the appellant has failed in discharging their duty as per CBLR. 16. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... We also find from the statement of Shri Ratan Baidya that computer system at CONCOR CFS contains the weighment slips and which could have been retrieved from the computer system. This would not have been possible unless the Weigh Bridge was in operation. So there are plethora of contradiction in the statement of Shri Ratan Baidya so as to conform the manipulation in the weight conclusively. We also find that inspite of having connived with the appellant company as stated in the investigation, the department has not initiated any action against Shri Ratan Baidya. In view of the above, and corroborative evidences on record other than statements recorded under Section 108 of the Customs Act, it would be too a harsh penalty on the appellant by revocation of their CHA licence as has been held in case of Mehul & Co. v. CC(General), Mumbai [2017 (357) ELT 644 (Tri.-Mum.)]. The relevant paragraph is reproduced as under:- "5.One of the contentions of the appellant is that the proceedings were initiated and concluded without any substantive reliance on credible evidence. We do note that there are a number of surmises in the inquiry report and in the findings of the adjudicating Commissio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not considered any other penalty and resorted to the extreme penalty, by revocation of CHA licence. From the order of the Commissioner we find that the submissions made by the appellant were not duly considered and the penalty of revocation was imposed without considering any alternate penalty. By revocation of licence of the appellant, there is denial of livelihood of appellant along with their employees. We also find that due to inherent contradiction among the statements recorded by the various persons, the revocation of CHA licence, which is harshest should not have been imposed by the impugned order as it would be disproportionate to the offence committed by the appellant even if it is held so. The Appellant has not been avoiding the investigation, but cooperated and also made a payment of Rs. 65.00 Lakhs to Customs so as to make good the loss to the Revenue. This in itself proves the bona fide of the appellant to sincerely attempt for the loss of revenue to be compensated. The charge against appellant is only regarding violation of Regulation 18(d) and 17(a) of CBLR. Regulation 11(d) and CBLR 13 is not established conclusively, which says "Customs Broker shall advice his cli....