TaxTMI 
TaxTMI 
2020 (2) TMI 233
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....481/2012 Commissioner Central Excise, Belapur Rajesh Bhanushali 1.2 By the impugned order, Commissioner has held as follows: "59.1 In relation to the consignments covered by the 1st SCN with reference to 50.0 to 53.0 above (i) The Customs duty of Rs. 51,13,537/- (Rupees Fifty One Lac thirteen thousand five hundred and thirty seven only) (as detailed in Annexure B to the 1st SCN) is confirmed under the provisions of proviso to Section 28(1) of Customs Act 1962. (ii) The goods totally valued at Rs. 125.72 Lakh (as detailed in Annexure B to the 1st SCN) which are liable to be confiscated under the section 111(o) and 111(d) of Customs Act, 1962 but are not available for confiscation and hence the same are ordered to be redeemed against a fine of Rs. 20,00,000/- (Rupees Twenty Lacs) under Section 125 of the Customs Act, 1962. (iii) Penalty of Rs. 1,00,00,000/- (Rupees One Crore) is imposed on M/s. Akshay Exports under Section 114A of Customs Act 1962. (iv) Interest at appropriate rate, on the duty evaded at (i) above, is also ordered to be recovered from M/s. Akshay Exports under Section 28(AB) of the Customs Act, 1962. Shri....
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....separately as penalty is imposed on their Partnership firm M/s. AE. (v) Penalty of Rs. 25,00,000/- (Rupees Twenty Five Lacs) is imposed on Shri Sanjay Sharma authorised signatory of M/s. Akshay Exports under Section 112(a) of the Customs Act 1962. (vi) Penalty of Rs. 25,00,000/- (Rupees Twenty Five Lacs) is imposed on M/s. P. Cawasji & Co. (CHA of M/s. Akshay Exports) under Section 112(a) of the Customs Act 1962. (vii) Penalty of Rs. 25,00,000/- (Rupees Twenty Five Lacs) is imposed on Shri Rajesh Bhanushali the then employee of M/s. P. Cawasji & Co. Under Section 112(a) of the Customs Act, 1962." 2.1 Against the impugned order, three appeals have been filed by the revenue and one appeal by the M/s P Caswasji & Co, Custom House Agent. 2.2 We have heard Ms Trupti Chavan, Assistant Commissioner, Authorized Representative for the revenue and Shri Arun H Mehta, Advocate for M/s P Caswasji & Co. None appeared for the respondents in the revenue appeals despite notice. Hearing in all the appeals was fixed on 26.02.2019, 01.04.2019, 09.05.2019, 07.06.2019, 15.07.2019, 29.08.2019 and 30.09.2019. Records show that they had also not participated in the investig....
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.... and DEPB licenses for clearing their imported goods from the PBW, in contravention of the procedures as specified in the circular no. 72/2003-Cus dated 11.08.2003 issued vide F.No.605/87/2003-D read with Public notice No.74/2003 dated 8.07.2003 issued vide F.No. S/16-Misc-444/03 GR.VII dated 08.07.2003 issued by Commissioner of Customs (Export Promotion), Jawahar Customs House, Nhava Sheva. 4.0 The impugned SCN thus alleged that M/s AE by their acts of omission and commission as above had rendered (i) The goods totally valued at Rs. 125.72 Lakh (as per Annexure B to impugned SCN) which were cleared using the 13 DEPB licenses and one DFRC licence, Liable for confiscation under the section III(J) of Customs Act, 1962. (ii) Themselves liable to pay the customs duty of Rs. 51,13,537 (as detailed in Annexure B -pages 1 to 4 to the impugned SCN) in terms of proviso to Section 28 (1) of Customs Act 1962. (iii) Themselves liable to pay penalty under Section 114A and/or Section 112 of Customs Act 1962. (iv) Themselves liable to pay interest, at appropriate rate, on the duty evaded, as mentioned at (ii) above, under Section 28 AB of the Customs A....
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....any endorsement of the balance credit. This enabled M/s AE to use it again for debiting duty on the clearances made by them from the warehouse. Shri Rajesh Bhanushali (representative of CHA) in his Statement dated 15.5.2007 admitted the same. Further they did not procure the RA/TRA and handed over the same to M/s. AE. Their role in the offence is proactive in aiding and abetting the offence committed and duty evaded by M/s A. M/s. P. Cawasji& Co. Ltd, the Customs House Agent of M/s. AE have rendered themselves liable for penalty under Section 112 of the Customs Act, 1962. 5.0 The impugned SCN accordingly called upon (i) M/s. Akshay Exports to show cause to the Commissioner of Central Excise & Customs having his office on the 1st Floor, CGO Complex, CBD, Belapur, Navi Mumbai as to why:- (i) The good totally valued at Rs. 125.72 Lakhs (as detailed in Annexure B to the impugned SCN) which were cleared using the 13 DEPB licenses and one DFRC license) should not be confiscated under the section 111(J) of Customs Act, 1962. (ii) Customs duty of Rs. 51, 13,537 (as detailed in Annexure B to the impugned SCN) should not be recovered under proviso to Secti....
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....oja. In terms of the Bond the importer was required to observe all the provisions of the Customs Act, 1962 and the Rules and regulations in respect of such goods. They are also required to pay all the duties, along with interest, on the goods. In view of the bonds executed by them and the violations occurred therein, duty can be demanded without any time limit. 18.0 It appeared that "AE" had contravened the provisions of Exim Policy 2002-2007 and Foreign Trade Policy 2004-09 as well as relevant Customs Notifications as it was evident that (1) clearances from places other than the Port of registration were allowed only against TRA/RA. The clearances were made without TRA/RA. (2) Further, "AE" were eligible for clearances under DFRC Scheme as per the description of the goods given in the DFRC licenses along with technical characteristics, quality and specifications but they cleared goods even though technical characteristics, quality and specifications were not matching. (3) They appeared to had also violate Rule 14(2) of the Foreign Trade (Regulation) Rules, 1993 which provides that no person shall employ any corrupt or fraudulent practice for the purpose of importing any g....
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....sterminded wilfully, with an intention to defraud the exchequer, the illegal ex-bonding of the imported consignments without obtaining the TR/RA and without following the provisions of Exim Policy 2002-2007 and Foreign Trade Policy 2004-09 as well as the relevant Customs Notifications. They were also responsible for depositing Customs duty in banks not authorised to collect the same. Accordingly, they appear to have actively abetted the offence committed by "AE" which rendered all such goods liable for confiscation under Section 111 of the Customs Act, 1962. Mr. Haque Malik Shaikh and Mr. Arvind R. Shah appear to have rendered themselves liable to penalty under Section 112(a) of Customs Act, 1962. 20.0 Shri. Sanjay Sharma, being the Authorized Signatory of the Company was involved in all the clearances made by "AE". He was also instrumental in clearance of goods without TR/RA, without following the provisions of DFRC, DEPB and DEEC Schemes and in depositing Customs duty in banks not authorized to collect the same. Accordingly, he appears to have abetted in the offence committed by "AE" which rendered all such goods liable for confiscation under Section 111 of the Customs A....
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....erms of Section 72 of the Customs Act, 1962 as per the conditions of the General Bonds executed under Section 59 of the Customs Act, 1962. (iv) Penalty, under Section 112(a) and 114A of the Customs Act, 1962, should not be imposed on them. 24.0 The following: (i) Shri Haque Malik Shaikh, Partner of M/s. Akshay Exports. (ii) Shri Arvind R. Shah, partner of M/s. Akshay Exports. (iii) Shri Sanjay Sharma authorised signatory of M/s. Akshay Exports. were also called upon to show cause as to why penalty under section 112(a) of the Customs Act, 1962 should not be imposed on them." 3.2 In para 53.0 of the impugned order, Commissioner has recorded, as follows: "53.0 In view of the above discussion and findings the value of goods that are found to be liable to confiscation under Section 111(o) r/w 111(d) of the Customs Act, 1962 and the duty of Customs liable to be confirmed and recovered in the impugned two SCNs, based on the work sheet as brought out in para 50.0 above, is as under:- SCN Value Duty 1st dt 13.03.2009 125.72 lacs 51,13,537/- 2nd dt 11.03.2010 5,88,17,964/- 8,28,60,998/- Acco....
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.... Customs Act, 1962. 4.2 While discussing the role of the Appellants, Commissioner has in para 52.0, 52.1 & 52.2 has recorded his findings as follows: "52.0 M/s. P. Cawasji & Co. (Noticee No.5 to both first SCN and second SCN) were the CHA to M/s. AE towards all imports carried out and covered by the impugned two SCN. Mr. Rajesh Bhanushali, Employee of M/s. P. Cawasji and Noticee No.6 to the second SCN conducted the required activities in respect to the imports as employee of the said CHA, towards the imports M/s. AE. M/s. P. Cawasji & Co. Through their proprietors M/s. Khambatta have in their defence (as brought out at para 7.1 & 34.1) stated following. That Mr. Rajesh Bhanushali, their employee had introduced M/s. AE to them. They have denied any knowledge of any alleged mis-declaration and they had not abetted in commission of any offence which have rendered the goods liable to confiscation. That they were never concerned with the goods in any manner to have reason to believe that the goods were liable to confiscation. They had accordingly submitted that there is no evidence of their having aided and abetted and thus they were not liable to penalty. ....
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....importer M/s. AE was brought to them by Mr. R. Bhanushali. 52.2 It is essential to bring on record that at the material time i.e. in year 2007, Mr. Rajesh Bhanushali was also investigated by DRI, Mumbai Zonal Unit, Mumbai for purported fraud of DFRC licences by fabricating tampering the Annexure sheet of original DFRC licences to enhance the GSM there on and utilisation thereof in clearance of low GSM Textile fabric. This investigation was conducted in relation to imports by M/s. Sunline Impex and M/s. Suraj Traders (SCN issued vide F.No. DRI/MZU/G/INV- 10/06-07 dt 31.03.2009). This fact cannot be denied by Mr. Rajesh Bhanushali. It is not by sheer chance that he was common factor in both cases of similar type. The intention and mens-rea on part of Mr. Rajesh Bhanushali in respect to the consignments in impugned two SCNs is evident, as he did not disclose this fact at any given time during his investigation in impugned cases, investigated at the same time. Thus inspection on part of Mr. Rajesh Bhanushali existed by collaborating with the partners of M/s. AE in the present issue on similar grounds is clearly established. M/s. P. Cawasji cannot be said to be oblivious of the....
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....war, who had provided them" export business" as he knew many people in exports business and after knowing about his ill doings, they terminated their association with him and Mr. Sanjay Panwar, no longer worked with them. They have also claimed that the same exporters had exported goods previously without any adverse notice, which was also the reason they did not suspect any foul play. They have only put an argument that they did not get to see or handle the goods for export as CHA and they work merely on the basis of the documents provided to them by the concerned party. They have also argued that in the present case the goods referred for examination were examined by the customs officers and cleared for export and that they had no expertise on in valuation of the goods nor they could physically count them prior to export and therefore they did not wilfully cooperated with the exporters for the fraudulent exports. All these are alibis to cover up their failures once the offence being perpetuated by them was detected and their game plan exposed, they have resorted to such explanations in self defence. 67. The investigations into the matter have conclusively established and....