TaxTMI 
TaxTMI 
2020 (2) TMI 1083
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....ommissioner has held as follows: a. "I hereby reject the declared FOB of Rs. 338.25 per piece of Mens 100% Cotton Knitted T Shirts sought to be exported under Shipping Bill number 5327189 dated15.03.2004 and re-determine the same as Rs. 35/- per piece and total FOB value as Rs. 4,20,000/-; b. I hereby reject the declared PMV of Rs. 120/- per piece of Mens 100% Cotton Knitted T Shirts sought to be exported under above Shipping Bill and re-determine the same as Rs. 28.53 per piece; c. I reject the claim for drawback of Rs. 4,30,254/-, claimed in respect of said Mens 100% Cotton Knitted T Shirts sought to be exported under the said Shipping Bill number 5327189 dated 15.03.2004 under Section 76(1)(b) of the Customs Act, 1962, as the PMV of goods sought to be exported is less than the drawback due on the declared value; d. I hereby confiscate the total quantity of 12,000 Pieces of Mens 100% Cotton Knitted T shirts having declared FOB value of Rs. 40,59,000/- and re-determined FOB value of Rs. 4,20,000/- seized under Seizure Memorandum dated 27.05.2004, under Section 113(d) and 113(j) of the Customs Act, 1962. e. I hereby give an option to the exporter to redeem the confisc....
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....ion to claim drawback of Rs. 35.85 which is more than the actual market value of the goods. The drawback therefore claimed was not admissible to them 2.4 Thus investigation revealed that Shri Nirmal Agarwal and Shri Ajay Verma conspired to defraud the exchequer by claiming drawback based on manipulated documents showing exaggerated export prices of garment. 2.5 Shri Rashid Y Shaikh Manager with M/s Panorama Express has actually dealt with the export consignments of M/s Aum International knowing well that the value of the goods has been misdeclared. He was not having any CHA License and was not authorized to deal with the export goods or export documents. He thus aided and abetted Shri Nirmal Agarwal and M/s Aum International in their export fraud. 2.6 Shri Gyan B Sharma, Partner, Vinayak Shipping (CHA 11/898) admitted that M/s Frost International Limited is a client of M/s Panorama Express Agencies and he did not knew the exporters. All the work relating to exports of M/s Aum International was handled by Shri Rashid Shaikhs Manager in M/s Panorama Express Agencies. He by lending his CHA License to Shri Rashid Shaikh aided and abetted Shri Nirmal Agarwal and M/s Aum International....
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.....08.2018, Shri Nirmal Agarwal, filed a written submission through Shri Parmatma Agarwal, challenging the jurisdiction of DRI officers to issue the Show Cause Notice at the relevant time. From then onwards there has been no representation on his behalf at time of any hearing despite notice. 3.3 Similarly Shri Ajay Verma also never turned up for any hearing despite notice. 3.4 We have heard Shri N S Patel, Advocate for Shri Gyan B Sharma & Shri Rashid Y Shaikh, and Shri Ramesh Kumar, Assistant Commissioner, Authorized Representative for the revenue. 4.1 The only submission which has been made in the written submissions filed by the Appellant in Appeal No C/437/2012 on 20.08.2018, is in respect of the jurisdiction of DRI officers to issue the Show Cause Notice, which has been settled by Hon'ble Bombay High Court in case of Sunil Gupta [2015 (315) ELT 167 (Bom)] {SLP Filed has been dismissed by the Apex Court as reported at [2017 (354) ELT A 162 (SC)] holding that DRI Officers have the jurisdiction to issue the Show Cause Notice. Appellant has since then never been represented at the time of hearing thereafter despite the notice. Hence this Appeal needs to be dismissed for non prose....
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....was recorded u/s 108 of the Customs Act, 1962 on 07.04.04 wherein he interalia stated that M/s Frost International Ltd and M/s AUM International are clients of M/s Panorama Express Agencies who have been engaged as their agents on Commission basis and all the Customs clearance work is attended by its Manager Shri Rashid Y Shaikh; that he did not know the exporters, that their job is limited to attending the customs assessment and physical examination in docks. 5. Statement of Shri Rashid Y Shaikh, Manager, M/s Panorama Express Agencies was recorded U/s 108 of Customs Act, 1962 on 07.04.04 wherein he inter alia stated that their firm is not having a CHA License and the Customs clearance work relating to their clients was being done under CHA License of M/s Vinayak Shipping Services (11/898); that he had undertaken the customs clearance work related to exports of M/s Frost International Ltd and M/s AUM International; that one Shri Ajay Verma used to hand over the export documents of M/s Frost International Ltd; that in case of export by M/s AUM International Ltd, the documents were handed over by one Shri Mayur; that apart from Shri Ajay Verma at times one Shri Nirmal Agarwal, who....
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....address given by the exporter. According to the learned advocate, the said lapse on the part of the employee of the CHA cannot be held to be a strong evidence so as to conclude that appellant aided and abetted the exporter in fraudulent exports. This may, at the best result in contravention of some provisions of the Regulation 13 of CHALR but cannot be made the basis for invoking the penal provisions of Section 114 of the Customs Act. Tribunal in the case of Nirmal Kumar Agarwal v. Commissioner of Customs (Gen.) Mumbai [2013 (298) E.L.T. 133 (Tri.-Mum.)] observed that in the absence of any evidence showing the involvement of CHA as regards the fraudulent activities, ingredient of Section 114 cannot be held to be satisfied so as to impose penalties. Under similar circumstances, the penalty on the CHA was set aside in the case of Prime Forwarders v. Commissioner of Customs, Kandla [2008 (222) E.L.T. 137 (Tri.-Ahmd.)], wherein it was observed by the Tribunal that as CHA acted on the basis of documents given to him and there is nothing to show that he was aware of containers being stuffed with the material other than the one declared, it cannot be said, in the absence of any evidenc....