TaxTMI 
TaxTMI 
2023 (9) TMI 969
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....lls of Entry, Invoice, Packing list on 16.09.2015. by certain importers for smuggling, action was taken for interception. Taking cognizance of the same, both 40 feet containers Nos. IALU 4562327 & IALU 44561001 laden on trailer no. GJ-12 BT 0492 & GJ-12 AY 8910 respectively, were further, intercepted by the officers of SIIB, Custom House, Mundra at Palsana Chokdi, Surat, Gujarat on 18.09.2015. 1.2 The investigation of SIIB revealed that both the containers have been imported in the name of M/s Season International Pvt. Ltd, having address at Venkatesh Chambers, Prescot Road, P. B. No. 714, Fort, Mumbai - 400 001, (IEC No. 0494026693) through Vessel CHICAGO, Voyage No. 002 vide IGM 2119446 (Line No. 76) dated 11.09.2015 & M/s Intec Poly Pvt. Ltd. having address at 48, Mangaldas Road, Lohar Chawl, Mumbai, (IEC 0409001851) through Vessel Inter Mumbai, Voyage No. 041 vide IGM no. 2119407 (Line No. 14) dtd. 10.09.2015. The details of the goods as per the Import General Manifest (IGM) were declared as Baby Diapers. 1.3 On being enquired with the drivers, the above mentioned intercepted containers found laden on trailer no. GJ-12 BT 0492 & GJ-12 AY 8910, it was learnt that both the ....
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....9.2015. 1.6 Thereafter, both the containers were escorted from ICD Sachin, Surat by the officers of SIIB on 19.09.2015 brought back to All Cargo Global Logistics Ltd. CFS, Mundra on 20.09.2015 for further detailed investigation. Meanwhile, on inquiry with the staff of M/s Ashutosh, CFS, they furnished copies of Bills of Entry No. 2564071 dated 11.09.2015 & 2569697 dated 12.09.2015 and copies of Out of Charge (OOC) Order No. 2016421340 & 2016432420 in respect of both the containers. Further it came to know that no Bills of Entry have been filed electronically and copies of Bills of Entry and Out of Charge order furnished by the CFS staff appeared to have been fabricated and the signature of Custom Officer were also forged. 1.7 Further, both the containers were found in seal intact condition with Custom bottle seal no. 2996 and 2997. The seals were further cut and 100% examination of good was carried out by the officers of SIIB, Custom House, Mundra under Panchnama dated 20.09.2015 drawn at All Cargo CFS, Mundra. On opening the container no. IALU 4561001, cartoons stacked in the front rows only were found as baby diapers, while the rest of the cartoons stacked/ stuffed-in, exce....
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....orted that there was gross negligence of staff of CFS while the Ashutosh CFS is bound to follow the procedure laid down in HCCAR, 2007 as well as the conditions of Public Notice No. 24/2007 dated 31.05.2007 issued by the Kandla Custom House (when Mundra port was also a part of Kandla Customs). Later on after the incident another public notice was issued prescribing further procedure vide P.N 27/2015 dated 28.09.2019 requiring verification from ICEGATE. 1.11 During the investigation, statement of Shri Hemanshu Madeva, Executive (Documents) at Ashutosh CFS and statement of Shri Zaru Madeva, Account Officer at Ashutosh CFS was recorded under Section 108 of the Customs Act, 1962 on 28.09.2015, they have stated that, during the verification of document pertinent to the Bill of Entry under which clearance was taken, they noticed the name of custom broker for the first time and they has some doubts & on verification of the genuineness of the bill of entry through ICEGATE, it displayed "NO RECORD FOUND", but they allowed the clearance as the document produced appeared to be genuine and many times ICEGATE show such type of error due to slow server. 1.12 Further, in their statement, th....
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.... should not be imposed on them under Sub-regulation 8 of Regulation 12 of HCCAR, 2009. 1.16 Learned Commissioner while dealing with the disciplinary proceedings against the policy under sub-Regulation (8) of Regulation 12 handling cargo in customs area Regulation 2009, imposed penalty of Rs. Fifty thousand against the appellant (CFS). Aggrieved by the order of Commissioner, the appellant has filed the present appeal. Learned Commissioner (Appeals) during course of his finding as follows: "19.1 I have carefully gone through the records of the case, submissions made by the noticee and record of personal hearing held before me. 19.2 As per the facts of the case, the clearances of the containers were taken on 14 occasions earlier from M/s Ashutosh CFS by producing forged/fake documents resulting into huge loss of revenue to government. The main defence of the CFS is that they complied with all the requirements prescribed in para (5) of Public Notice no. 24/2007 dated 31.05.2007 issued by the Kandla Custom House (when Mundra port was also a part of Kandla Customs). As per para (5) of the Public Notice, the importer/CHA has to submit the duly signed copy of out of ch....
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....them for real and, acting as per Public Notice as well as verbal instructions of customs officers posted at the Custom House from time to time. They have also ensured that after completion of delivery of imported goods, the duplicate copy of all the bills of entry was in variably sent to the Custom House for post clearance verification. But they have no explanation about the callous attitude adopted by their employees in spite of doubting the authenticity of the documents as not available on site of ICEGATE and allowed the containers to be moved out by the unauthorized persons. Hence, their submission that they are careful in discharging their duties is completely wrong. Being the custodian of import consignment, they are legally bound to ensure that standard operating procedure followed at their CFS is followed meticulously which included verification from ICEGATE even before issue of PN No. 27/2015 of 28.09.2019. 20. In light of the discussions on above, I hold that M/s Ashutosh CFS by their acts of omissions have not adhere to the conditions as prescribed in Regulation 6(1) of the Handling of Cargo in Customs Area Regulations, 2009 and thus are liable for penalty under ....
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....ese regulations, whether within the of the said Commissioner or anywhere else: (c) any misconduct on his part whether within the jurisdiction of the said Commissioner or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Custorns Station. 2. Notwithstan ding anything contained in sub-regulation (1), the Commissioner may, in appropriate cases, where immediate action is necessary, suspend the licence of a Custom House Agent where an enquiry against such agent is pending or contemplated." The suspension/revocation of licences under this regulation could be made on any of or all of the grounds given under Regulation 21(1). The Commissioner has not come to a specific finding as to under which ground of Regulation 21(1) he is considering that there was a failure or misconduct on part of the CHA. A perusal of this CHALR, 1984 does not indicate that taking alleged instructions from a third party, would be in contravention cast as regards the obligations on a CHA under Regulation 14 of CHALR, 1984. The obligations on a CHA have been listed under regulation 14. They do not cast any such obligation on hi....
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....the relevant time was dictated by public notice 24/2007 of Kandla Custom House at Mundra and later on by a public notice 27/2015 dated 28.09.2015, wherein an additional safeguard was provided the CFS shall check status of the bill of entry on ICEGATE website before issuing the gate pass or exit of any import cargo. The substance on the basis of which the department has given differential treatment to other CFS and their employees is the number of transactions as all employees of the freight Station made similar lapse of checking at ICEGATE and still ignoring. The employee in the case of present appellant checked bill of entries, it appears even when not required by Public Notice of 2007 on the ICEGATE website and despite show of no record found on the screen and under stated belief that the system was slow or not operating overlooked the same as in case of other CFS's. And on the basis of public notice of 2007 in vogue, allowed the gate pass to be issued and therefore against the CFS of the employee the present penalty of Rs. Fifty thousand under HCCAR, 2009 has been imposed. We find that Learned Commissioner has held that the requirement of verification from ICEGATE was existing e....
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....he goods at the said CFS. The movement of containers by road vehicles between the said CFS and the Customs area inside Gateway ports will be undertaken by M/s. Ashutosh Container Services Pvt. Ltd. IMPORT 2. The following procedure is prescribed for clearance of Import Cargo at the said CFS: 2.1 The Importers/Exporters/CHA will submit copies of respective IGM & OBLS to the Custodian at the said CFS along with a request for movement of Import (Loaded) Containers from CY-MP & SEZ, MUNDRA to the said CFS in advance. 2.2 The Custodian will arrange transportation of the Import Loaded Containers from the Customs area in MP & SEZ, MUNDRA to the said CFS after taking over the same from the Port Authorities concerned on the strength of an Equipment Interchange Report (EIR) to be prepared jointly by the Custodian & MP & SEZ, MUNDRA officials duly authorized by gate Proper Officer of Customs. In case seal of any Import Container is found to be tampered, the same will be removed from the Customs Area of MP & SEZ, MUNDRA to the said CFS only after obtaining Permission of the Asstt./ Dy. Commissioner of Customs Bhuj who is in charge of the CFS and under Custom....
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....r indication of the lot to which the same belongs. The Custodian shall be wholly responsible for proper stacking and safety of the cargo and for any shortages / damages that may occur during the period when the goods are under their custody. 3 IGM verification and noting of Bill of Entry. The importer/CHA shall present the Bill of Entry along with the relevant documents at the counter of IGM clerk who will carry out the IGM verification and enter the particulars of IGM in the IGM register. Thereafter the importer/CHA will hand over the Bill of Entry to the noting clerk for making entries in the Noting Register. 4. Alert and licensing check. After receiving the Bill of Entry from the noting clerk, the Alert Notice Inspector shall immediately do the alert notice check and after satisfying himself that the goods/imports license are not in the suspected category shall hand over the Bill of Entry to the Appraiser or Superintendent for appraisement. Generally the assessment shall be through second appraisement procedure. However, in certain cases the Dy Commissioner/Assistant Commissioner in charge may decide to order first appraisement. 4.1 P....
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....tion 47 of the Customs Act 1962), the Importer/CHA shall obtain fresh challan of payment of duty along with interest accrued there on. After payment of duty and interest, the duty paid Challan and Bill of Entry shall be deposited at the counter of the detach clerk and the said detach clerk will enter the particulars of payment in the relevant register. Original Bill of Entry shall be retained by the detach clerk and remaining copies will be returned to importer/CHA who shall produce them to the import shed. 5. Out of Charge The Appraiser/Superintendent of the shed shall endorse 'out of charge' on the duplicate copy of Bill of Entry after ensuring that all formalities have been completed The duplicate copy of Bill of Entry shall be detached by the examining officer at the shed and he will give one copy of the gate pass to the importer/CHA who will submit the same duly signed by the said Appraiser/Superintendent to the Custodian for delivery of the goods on their gate pass. After giving full delivery of goods, the shed Appraiser/Superintendent shall send the duplicate copy of B/E to the dispatch clerk The dispatch clerk shall, then, match the original and du....