TaxTMI 
TaxTMI 
2023 (9) TMI 1074
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....g list on 16.09.2015. Taking cognizance 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 ....
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....stacked in front rows were only containing Diapers, 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 En....
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.... Bogus BE (Rs.) Actual Market Value (Rs.) Decl. Duty in Bogus B/E (R.s) 1 6223981 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 &....
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....s well as the CFS has fallen a collective victim to the fraud perpetrated by the miscreants; they invited attention of the Public Notice No. 24/2007 dated 31.05.2007 ("Public Notice") issued by the then Commissioner of Customs, Kandia, laying down the procedure for Customs clearance at the CFS, considering that at the time of commencement of CFS operations, Mundra was under jurisdiction of Custom House, Kandla and argued that the SCN does not allege deviation from the procedures laid down in the above Public Notice; that the entire basis of the Show Cause Notice is a fraud committed 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 ent....
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....tails appearing in the documents akin to the bills of entry presented to the CFS were available on EDI system/record of Custom House, Mundra, the CFS was able to immediately provide the entire set of documents including those bearing the original signatures and stamps of the Custom officers of Mundra, based on which delivery was given. The CFS also provided the details/photographs of vehicles (trucks), truck drivers, CCTV footage, etc. and it is a matter of record that information as well as CCTV footage, etc. provided by the CFS on 21.09.2015 has proved to be of immense help 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 foll....
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.... in the para that as per statement of Vinod Lakhani, Junior Executive(Documents) at Ashutosh CFS recorded under Section 108 of the Customs Act, 1962. he has stated that during the verification of document pertinent to the bill of entry under which clearance was taken, he noticed the name of custom broker for the first time and he has some doubts & on verification of the genuineness of the bill of entry through ICEGATE, it displayed "No record Found", but he allowed the clearance as the document produced appeared to be genuine and many times ICEGATE show such type of error due to slow server. 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 sai....
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....h requests. In this regard, I refer to CESTAT order in case of Shally Thapar Vs. Commissioner of Customs reported in 1993(64) ELT 31(Tribunal) wherein, the Hon'ble tribunal by citing the Supreme Court order in AIR 1997, SC 1627 has held that there is no hard and fast rule in quasi-judicial proceedings in allowing cross examination and it is to be determined depending on the circumstances of the case. In case of Commissioner of Customs, Chennai Vs. D. Bhoormull, reported in 1983 (13) ELT 1546 (SC), the Hon'ble Supreme Court has held that the provisions of the Evidence Act as well as Code 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 i....
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....ocument about which there is no credite explanation and nothing on record to show statements not voluntary or effectively retracted within close proximity of the time these were detained. 1.16 In light of the discussions on above, I distinguish the conduct of M/s Ashutosh CFS from other 2 CFSS and hold that M/s Ashutosh CFS by their acts of omissions, have rendered the goods liable for confiscation as per provisions of Section 1110) of the Customs Act, 1962 and thus they are liable for penalty under the provisions of Section 112 (a) of the Customs Act, 1962. 1.17 Accordingly, learned Commissioner Customs 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 o....