TaxTMI 
TaxTMI 
2025 (7) TMI 1469
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.... of duty drawback. During the investigation, the Customs Officers recorded the statements of the proprietor of M/s.BV & Co., statements of Shri Vishal Girishkumar Purohit, statements of Shri Brijesh Kanjibhai Kevadiya, statements of Shri K.V.M. Arjun, AGM (Finance & Accounts) of M/s. Seaways Shipping Ltd., Gandhidham, statements of Shri Amit D Patel, Proprietor of M/s. Amit Corporation, statement of Shri Afzal Ghadiali and statements of other concerned persons. 1.2 After concluding the investigation, DRI issued show cause notice dated 13.10.2009 to Shri Brijesh Kanjibhai Kevadiya, Shri Afzal Ghadiali and M/s. Amit Corporation proposing confiscation of the seized goods, rejection of duty drawback in respect of present as well as past exports and imposition of penalty. They also proposed penalty on M/s. Seaways Shipping Ltd., Gandhidham and their AGM (Finance and Accounts) Shri K.V.M. Arjun, under Section 114 (iii) of the Customs Act, 1962. 1.3 The above show cause notice was adjudicated by the learned Commissioner wherein, he ordered confiscation of the seized goods with option to Shri Afzal Ghadiali to pay the redemption fine of Rs.2.6 Lakhs, rejection of duty drawback of Rs.....
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....nd; (iii) Captain Siddharth Shukla and Shri K.V.M. Arjun failed in their obligations with regard to regulation, 13(a), (d) and (e) of CHALR (Custom House Agent Licensing Regulations)- 2004 * The show cause notice as well as the Adjudication order acknowledges that Shri K.V.M. Arjun has acted in his individual capacity. The adjudicating authority has exonerated captain Shukla against charge of abetment in para 20 of his order. On second allegation that quantity was mis-declared, in the S/Bs, he held that there is no basis for this allegation. * Regarding failure to fulfill obligations under CHALR-2004, Commissioner has failed to make any clear-cut case citing exact omission or commission in his order as he has mentioned that Captain Shukla met the exporters only once regarding his filing against requirement of an authorization by the exporter. In several cases, Tribunal has held that filing documents without separate authorization is not a breach of regulation 13(a) of the CHALR- 2004. Prescribed shipping bills and forms themselves have provision for signing the declaration by the importer/ exporter and the CHA both. Once signatures are appended on the bills of ent....
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....cer can assess the export goods as per Section 50 of the Customs Act, 1962. Penalty under Section 114 (iii) is leviable only on any person who, in relation to any goods does or omits to do any act which act or omission could render such goods liable to confiscation under Section 113, or abets the doing or omission of such an act. The allegations made against CHA like not obtaining authorization or not showing diligence in identity of the exporters is not the reason for rendering the goods liable to confiscation. KYC norms were inserted in the regulations only w.e.f 08.04.2010 by Notification No.30/2010 whereas, the dispute in this case relates to year 2009. He further argued that the shipping bills were signed by both the exporters as well as the CHA which is deemed authorisation. He placed reliance on the following decisions:- 4.2 As regards penalty on Shri KVM Arjun, learned Advocate mentioned that his client has been imposed penalty of Rs.75 Lakhs under Section 114 (iii) of the Customs Act,1962 who is an employee of the CHA firm. The lower authorities have taken two grounds for imposition of penalty on Shri him, firstly, he gave the idea of exporting cycle parts to claim high....
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.... the present appellants to impose a penalty of Rs.10 Lakhs on the CHA firm (Appellant No.1) and penalty of Rs.75 Lakhs on Shri K.V.M Arjun, under Section 114(iii) of the Customs Act, 1962. 6.2 We find that one of the contention of Learned Advocate is that DRI officer is not a proper officer to issue the SCN. He cites the decision in Canon India case delivered in 2021. We however find that Hon'ble Apex Court in it's review order reported at 2024 (390) E.L.T. 545 (SC) has held that DRI officer is a proper officer to issue the SCN. Thus, the basic objection of Learned Advocate is not correct. We further observe that the learned Adjudicating Authority in para-10.6.8 of the impugned order quotes para 23 of the SCN which alleges that "Shri Arjun has acted in his individual capacity and conspired with Shri Brijesh and Shri Afzal to export the said pins of general use by declaring the same as Cycle Parts-Cotter Pins and overvaluing the same with an intention to avail higher export benefit in the form of duty drawback for which he was paid hefty amount." He also concludes that there is nothing in the statements of Captain Siddharth Shukla, (Branch Head of the CHA firm) that he was aware ....