TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 1074
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of same, immediate action was taken and both the said containers were intercepted by the officers of SIIB, Custom House, Mundra at Palsana Chokdi, Surat, Gujarat on 18.09.2015. The said containers were found laden on Trailer No. GJ-12 BT 0492 & GJ-12 AY 8910 respectively. 1.1 Enquiries revealed that both the containers were 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) as per 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) as per 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. 1.2 On further enquiry with the driver, it was learnt that both the containers were taken out of M/s Ashutosh Container Services Pvt. Ltd. (CFS), Mundra, at around 19:05 hours & 20:00 hours on 16.09.2015. On being asked to produce the Customs clearance papers covering both the containers, the drivers produced the Consi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pers, while the cartons stacked behind the front rows were noticed containing Cosmetics of reputed brands viz. Nivea Body Lotion, Lomani Brand Deo Spray, Dove Brand Beauty Cream, Revlon Brand Colour Silk Beautiful Colour, Eskinol Natural Lemon Facial Cleanser. For detailed examination of goods by Customs, Mundra, both the containers were re-sealed with Customs Bottle Seal No. 2996 and 2997 respectively at ICD, Sachin, Surat under panchnama dated 18.09.2015 and, 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. 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. It was further ascertained that both the containers bearing No. IALU 4561001 & IALU 4562327 were arrived at Mundra port under IGM No. 2119407 dated 10.09.2015 & 2119446 dated 11.09.2015 respectively describing goods as 'Baby Diapers' and no Bills of Entry have been filed for the same and copies of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....223981 23.07.2014 FCIU355 2493(20) Coco Powder Ashutosh CFS Mundra 825931 Not Known 472449 2 6491570 20.08.2014 CRXU9 828946 (40) Coco Powder Exim Yard APSEZ, Mundra 825931 Not Known 472449 3 7907097 06.01.2015 CRSU1 271404 Cold Drink Mundra CFS, Mundra 1500159 Not known 432823 4 8256797 11.02.2015 LALU4563 175(40) Tenderizer For sea food Ashitosh CFS Mundra 1500159 Not known 432823 5 8963079 18.04.2015 LALU224 4538(20) Tenderizer For sea food Ashitosh CFS Mundra 1500102 Not known 414809 6 9255071 14.05.2015 GESU59 13922(40) Spare parts Ashitosh CFS Mundra 1500102 Not known 414809 7 9513977 15.05.2015 LALU225 6375(20) Tenderizer For sea food Ashitosh CFS Mundra 1500102 Not known 414809 8 9527514 19.06.2015 LALU21 20394 Pencils & crayons Ashitosh CFS Mundra 983812 Not known 250165 9 9527596 19.06.2015 CLHU233 3194(20) Tenderizer For sea food Ashitosh CFS Mundra 1081021 Not known 311895 10 9983789 22.07.2015 SEGU109 2633(20) Footwear of plastic sole Ashitosh CFS Mundra 491906 Not known ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mitted by the miscreants; that the bills of entry were fabricated and signatures of officers were forged. Consequently, the employees of CFS before whom these forged papers were tendered took them for real and acting as per Public Notice as well as verbal instructions of Custom officers posted at the Custom House from time to time, they have ensured that after completion of delivery of imported goods, the duplicate copy of all the bills of entry is invariably sent to Custom House for post-clearance verification. Accordingly, the duplicate copy of all the bills of entry, including the incriminating bills of entry listed in the SCN, were unfailingly submitted to Custom House, Mundra, every month for conducting post-clearance verification. The regular submission of the details along with copies of bills of entry to the Custom House by the CFS is sufficient to establish that employees of CFS were not careless in discharging their duty; that the Custo Brokers, whose names were mentioned in the fabricated and forged bills of entry, are duly Briano Marine as as Power of Attorney holder of M/s. Venjoh Logisties Pvt. Ltd., in their registered with Custom House, Mundra. These facts were duly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the Department in locating and intercepting the containers with imported goods inside. These inputs also helped the Department to apprehend the culprits and arrest them; that the allegation regarding carelessness, etc. on the part of employees or CFS are far from truth. In view of above, they stated that they are not liable for penalty under the provisions of Section 112 (a) of Customs Act, 1962." 1.9 Learned Commissioner of Customs House, Mundra vide following findings disposed off of appeal imposing penalty under Section 112A, holding the appellant vicarious liable for omission of the employees as follows: Penal action proposed against Container Freight Stations namely M/s Ashutosh Container Services Pvt Ltd (Noticee No.08), M/s Exim Yard (CFS) (Noticee No.09) and. M/s Mundhra Container Freight Station Pvt Ltd. (Noticee No.10) 1.10. As per the facts of the case, the clearances of the containers were taken on 16 occasions (including the 2 containers which subsequent dicarance were seized) from M/s Ashutosh CFS and 1 container each from Mundra CFS & Exim yard of APSEZ, Mundra by producing forged/fake documents by the conspirators. The main defense of all the 3 CFSS is that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The reason given by the employee in allowing the exit of import cargo even after noticing on verification of genuineness of bill of entry from ICEGATE that "NO RECORD FOUND" is not at all convincing, as in a situation of slowness of server, sites display error but never display the wrong message as "NO RECORD FOUND". Such a message will be displayed only if wrong bill of entry number is entered or bill of entry is not filled. Therefore, if he had noticed such message on the screen, it was his duty to ask customs officer concerned and get the documents verified. But in their submissions, the said CFS, silently ignoring all such aspects, has disowned the responsibility by simply stating that as the SCN admits the bill of entry were fabricated and signatures of officers were forged, the employees of CFS before whom these forged papers were tendered took 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 and they have 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de of Criminal Procedure, in terms, are not applicable to the adjudication proceedings. Further, Hon'ble Madras High Court, in the case of K. Balan Vs. Govt. of India, reported in 1982 ELT (386) Madras, had held that right to cross examination is not necessarily a part of reasonable opportunity and depends upon the facts and circumstances of each case. It largely depends upon the adjudicating authority, who is not guided by the rules of evidence as such but who must offer such opportunity to the party concerned as would assure him proper opportunity to defend himself It would, however, be in the interest of justice and fairness to the parties, that the opportunity to cross-examination is given wherever it is relevant, justified and genuine and where it is not for protracting the proceeding, as held by the Hon'ble Tribunal in M.P.Jain Vs. CCE 1988 (37) ELT 577 (Trib). Similarly, in the case of Shivom Ply-N-Wood Pvt. Ltd vs. Commissioner of Customs & Central Excise, Aurangabad, reported at 2004 (177) ELT 1150 (Tri. Mumbai), Hon'ble Tribunal, in their order, in para 6, has held as under: "6......Their contentions that principles of natural justice are violated inasmuch a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oms imposed penalty of Rs. 50 Lakh on the appellant under Section 112A of the Customs Act, 1962. The Learned Counsel for the party submitted that the Section 112A does not permit vicarious liability to be placed upon employer for any lack of diligence of employer, specially when such employees has not even being made party to the SCN. In any case there was no wrong doing even on the part of employee as he was as diligent compare to employees and employer involved of 2 more container freight station who did the same and checked status on ICEGATE as per statement dated 26.11.2015 of Ritesh Devda and statement dated 26.11.2015 of Shri Mukesh Sharma (both employees of Mundra and A.P SEZ resp) and still have been let off by commissioner along with CFS, despite being similarly placed. Further they have been definite findings that there was no inculpatory statement on the part of the employees, therefore Section 112A which requires mens rea could not have been attracted to impose penalty. In this regard, he seeks to place reliance on the decision of Hon'ble High Court of Gujarat in the matter of Rama Nagappa Shetty as reported in 2020 (10) TMI 741 and as followed by (CESTAT-Ahmd.) as repo....