TaxTMI 
TaxTMI 
2021 (6) TMI 710
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....becomes eligible to appear for F-Card Holder exam only if he has not been penalised for any offences under the customs act and various other act. Since the appellant has been penalised in the customs act he becomes ineligible to appear for the said exam in terms of Regulation 5 of the CBLR 2018. In above background earlier hearing was allowed to the appellant. 2.2 The appellant is co-noticee in the case wherein the large number of Embroidery Machines were imported using EPCG License in the names of fictitious non existing entities. The charge against the appellant was that he facilitated for import of these machines in fictitious names, by failing to verify the documents, by failing to conduct KYC of these fictitious importers. It was also held in the impugned order that the appellant used G Card details of Shri Amit Khatu in the import documents and also signed for Mr khatu. It was also held that the appellant signed import documents in the name of N.B Agarwal who had already died. Para 52.5 of the impugned order records as follows: "52.5. I find that Mr. Manoj Gadhiya in his depositions recorded on 13.02.2014 has accepted that they did not have any KYC in respect of the import....
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.... , IEC, RCMC, SSI, Factory address proof, electricity bill, municipal tax bill along with leave and licence agreement and residence address proof of the importer which are all self attested documents by the importer DRI booked case against M/s Rudrani Impex Pvt Ltd, Surat, alleging diversion of imported computerised Embroidery Machines Computerized against dummy IEC and EPCG Licence holder or payment of zero duty or 3% concessional Custom duty. The notice alleged that imported these machines from china and shown said machines as sold on High Sea Sales Basis to the dummy/fictitious IECs holder firms and got cleared the said machines against EPCG Licenses of these firms. In this case the bill of entry was filed by M/s Ukinex Commercial Services. 3.1 In this regard, statement of the present appellant was recorded on 13.02.2014 wherein the appellant had explained to the officers of investigating agency, the method and manner in which he used to undertake the task on behalf of CHA firm. The appellant had explained in general terms in regards to all the importers that they had not maintained any records in respects of KYC of their customers, however, they were verifying the genuineness ....
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....nfirmed when the person has submitted self attested documents to be submitted before the Government department. The self attestation of a document puts responsibility of genuineness of photocopy of document on the person attesting it. The Importer Exporter Code has been verified from website of DGFT. 3.5 The appellant has submitted that they have verified the electricity bills from Torrent Power website and Surat Municipal Tax bills produced by importers from surat Vera (tax) website. No discrepancy has been found and the information given in the self attested documents were found matching with the details available on respective website. 3.6 Thus all the reasonable steps were taken by the appellants before submitting documents to the customs. It cannot therefore be said the appellant has contravened the provisions of Rule 11(n) of CBLR, 2013. In the first statement itself the appellant had disposed before the investigating officers that this type of procedure was being followed in respect of all the importers and Rs. 8,000/- per container was charged for which bills were raised. There is no allegation of the department that the appellant had charged any extra money from M/s Rudr....
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....n 27.03.2014 (Copy of Statement is at Exhibit 'C') has confirmed in his statement that bills of entry and examination orders were signed by Shri Nirmal Kumar Agarwal and after the death of Shri Nirmal, one Shri Amit C. Khatu, employee of the said firm and G card holder who sits in Mumbai Office signed on the said documents for imports and exports at the ports of Mumbai as well as at Surat. He has also stated in the same statement at the other place that after online assessment of bill of entry the 2nd and 3rd copy of bill of entry obtained from CMC was sent to their head office at Mumbai by Shri Haresh Gadhiya from Surat and Shri Nirmal Kumar Agarwal signed these documents and after the death of Shri Nirmal, one Shri Amit C. Khatu used to sign these documents. Except the version of Shri Amit C. Khatu that he had never gone to Surat to sign import documents, it cannot be concluded that signature of Shri Amit C. Khatu was being forged by the appellant. If the department believes version of Shri Amit C. Khatu, the department shall also have to believe the version of Shri Baldev, as both the statements have been recorded under Section 108 of the Customs Act, 1962 and evidentiary value ....
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....rities , Factory Rent Agreements, documents in respect of ownership of the premises of landlord , Copy of Electricity Bill, copy of EPCG Bond etc, that pages nos. 37 to 46 of the said File No. 1 was original rent deed made between Shri Maheshbhai Karshanbhai Patel, owner of plot No.1, Tapi Industrial Co-op. Society, Ved Road, Surat and Shri Dilipbhai h. Gabani, Prop. of Narayan Muni Fashion, Surat made for 11 months, that pages nos. 60to 64 o the said File No. 1 was Photo copy of above said rent deed, that he was shown page no. 62 of said file wherein at sl. No. 2 it was mentioned that the said rent deed was made for 60 months and in this regard, he stated that the said manipulation of 60 months instead of 11 months was done by Shri Manojbhai Gadhiya, that in case of original buyers manipulations were made mostly in Rent deeds, as normally rent deed for any premises was made for 11 months only and for imports under EPCG they have to submit a rent deed made for 60 months before customs and therefore in such cases; * that to illustrate the above modus operandi he was shown File No. 7 of Annexure -A, containing 62 pages , seized under the panchnama dated 29.11.2013 drawn at their re....
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.... a material piece of evidence collected by customs officials under section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the customs act, The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statements clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine." 4.3 Learned AR argued that the statement of Co- Accused can be relied upon in terms of the aforesaid decision. He also relied on the decision of tribunal in the case of Noble Agency V.s Commissioner of Customs, Mumbai-2002 (142) E.L.T. 84 (Tri.-Mumbai) In para 12 of the said decision following has been observed:- "12. The CHA occupies a very important position in the Custom House. The customs procedures are complicated. The importers have to deal with a multiplicity of ag....
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.... M/s RIPL was one of their main customers and was engaged in High Sea Sale of the machinery to the various parties. He stated that the said high sea sellers gave them the work of customs clearing and forwarding for their buyers who were the importers and that they did not have direct contract with such importers and they filed the bill of entry for the said importers on the basis of the High Sea Seller's instructions and submission of different documents required for customs clearance. He also stated that they had received the authorization various importers from respective High Sea Seller/Dealer. These documents received from High Sea Seller were submitted to the customs authorities. He also stated that they had not kept copy of the said authorization with them and hence they did not have any such authorization with them. He also stated that they did not have any KYC in respect of importers wherein M/s RIPL was the High Sea Seller. He clarified that Shri Kaushal Shukla and Shri Shailesh both employees of M/s RIPL used to come along with all the relevant documents from M/s RIPL. All the consignments of M/s RIPL imported through ICD, Sachin, Surat where sold on High Seas Sale basis ....
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....directors Shri Salil Shah and Shri Kaushal Shukla. He was also shown the statement dated 10.02.2014 of Shri Sureshchandra Zariwala, Proprietor of M/s Ambika Fashion, Surat. He had gone through the said statement of Shri Sureshchandra Zariwala dated 10.02.2014 and agreed with the same. On being asked about the signature appearing on the statement of Shri Sureshchandra Zariwala and signature appearing on letter dated 03.09.2013 M/s Ambika Fashion, Surat; addressed to the Assistant Commissioner Of Customs, ICD Sachin, Surat and on High Sea Sale Agreement he stated that, the signature on the said letter and high sea sale Agreements were not matching with the signature on the said statement recorded under section 108 of the Customs Act, 1962 wherein he stated that they had neither taken any IEC or EPCG Licence nor they had imported any Computerized Embroidery Machines and did not have any factory premises. He stated that the signature on the said letter and High Sea Sale Agreements appears to be forged one; that the said documents was submitted by them before the customs as supplied by the High Sea Seller and they had not verified it's authenticity and he was not aware who had signed on....