TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 1204
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....ppellants challenge the impugned Order in Original, dated 30.04.2022, passed by the Commissioner of Customs, Ludhiana Appeal No All of 2022 Appellant Remarks Penalty imposed in Rs/ under Section 60213 Suraj Salaria Inspector of Customs 50,000/117 60232 Saurabh Kumar Superintendent of Customs Do 60251 Secon Logistics Pvt Ltd The Custom Broker 20,00,000/ 112 1,80,00,019/114AA 60252 Jatinder Kumar Director of the Custom Broker 60,00,535/ 114A 1,80,00,019/114AA 60261 Yashpal Goyal Proprietor, M/s Goyal Steel Industries 4,00,000/117 60262 Rajan Arora Partner cum H-Card holder in M/s Sark Enterprises Do 60263 Love Sharma Authorised Signatory of M/s Goyal Steel Industries Do 60264 Sunil Kumar Proprietor, M/s KVR Enterprises Do 2. Brief facts of the case are that an intelligence received by DRI, Ludhiana indicted that dry dates were being imported mis-declaring the same as Light Melting scrap. A watch was kept. Meanwhile, a bill of entry No. 2086929, dated 23.12.2020, for import of Light Melting Scrap in 05 containers, showing the importer as M/s Goyal Steel Industries, who are sa....
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.... that the signatures appended on the High Sea Sales documents, Form-A were of Shri Yaspal Goyal, Proprietor of M/s Goyal Steel Industries and Shri Manish Kumar, Proprietor, M/s Raghav Alloys & Metal. * Shri Jatinder Kumar managed the import of the mis declared cargo; M/s Secon Logistics Pvt Ltd, the Customs Broker, filed Bills of Entry No. 2086929 dated 23.12.2020 and No. 2103144 dated 24.12.2020; they are well versed about the regulations of Customs Broker Licensing Rules, 2018 as required to before filing any of the consignments. Shri Jatinder Kumar admitted that he never met Shri Yashpal Goyal, proprietor of importer firm M/s Goyal Steel Industries; that he received authorisation in Form 'A', through one Shri Love Sharma, but he did not know whereabouts of Love Sharma; that the work order for seal cutting and customs examination was not signed by him or any one from his broker firm; that his broking firm were in direct touch with the Shipping Line to expedite the cargo. * Shri Bodhraj Sharma, Manager of the Custodian Hind Terminal Private Ltd affirmed that the work order for seal cutting and Customs Examination was not signed by the Customs Inspector or Customs....
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....dustries. Shri Jatinder Kumar was arrested on 22.01.2021 and finally granted bail vide order dated 25.03.2021. Shri Jatinder Kumar filed CWP No. 20282 of 2021 in the Hon'ble High Court of Punjab & Haryana at Chandigarh, who vide order dated 05.10.2021, framed three issues and directed the Additional Director General, Directorate of Revenue Intelligence, Ludhiana to decide all those three issues by passing a speaking order in accordance with law; accordingly, a Speaking Order, dated 20.10.2021, was issued by the Additional Director General, Directorate of Revenue Intelligence. 2.3. It appeared to the Revenue that impugned goods were mis-declared as Light Melting Scrap whereas the goods were Dry Dates; the value declared thereof cannot be adapted to different goods and thus, the value is also mis declared; it appeared that the goods are rendered liable for confiscation. Further, as no Plant Quarantine clearance was obtained, it further appeared that the imported dry dates are liable for confiscation, having been imported in violation of conditions specified in Plant Quarantine (Regulation of Import in to India) Order, 2003. It also appeared that all the persons involved are liable....
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....ppellant Company; during the course of business, the Appellant received documents, like Invoice, Packing List Bills of Lading, High Sea Sales Agreement as well as Original Copies of Authorization, from the Importer M/s Goyal Steel Industries through their Authorized Representative Shri Love Sharma, for customs clearance work in respect of clearance of "Light Melting Scrap"; importers of "Light Melting Scrap" need to register themselves with the Director General of Foreign Trade ( DGFT), on "Steel Importing Monitoring System", giving all particulars, for each and every import, before filling of the Bill of Entry and clearance, in terms of Notification No. 17/2015-2020 dated 05.09.2019; the said registration can only be done with the help of an OTP received on the Phone Number of the Importer; he submits the relevant Page of the Module and submits that in respect of goods imported by M/s Goyal Industries registration was done with the help of the Digital Signatures and in respect of imports made by M/s Raghav Industries, the same was done with the help of OTP received on their registered Mobile Numbers. 4. He submits that the Appellant as Customs Broker had filed the Bills of Entr....
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.... "Dry Dates"; it is pertinent to note that the Seizure Memo as executed by the Officers of DRI was addressed to the Importer M/s Goyal Steel Industries and not to the Appellant or its Director; search of the premises of the Appellant did not result in finding anything incriminating against the Appellant pertaining to the alleged imports of Dry Dates in the garb of Light Melting Scrap; when summons were issued, appellant requested for some time as the importer was not in touch with them; in his statement the appellant stated that he was not aware about the contents of the goods having been imported and about mis-declaration; work order for seal cutting was not assigned to them as CHA; despite the fact that Appellant CHA as well as its Director, had no role to play in the alleged offence, he was arrested. He submits that DRI took contradictory stand while opposing his bail on different occasions; during the course of pendency of Bail Application before the Learned Trail Court, the DRI Officers took a categorical stand that both the importers were found to be non-existent; however, DRI opposed the petition filed by Shri Raghav Garg of M/s Raghav Alloys & Metals, for anticipatory bail;....
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.... General Manager of M/s MSC Mediterranean Shipping Company, stated that the containers for import of Light Melting Scrap were booked by M/s AEGON Shipping LLC, Dubai on behalf of the Shipper M/s Sama Al Jazeera Auto Used Spare Parts TR. LLC, Dubai; it transpires that booking of the containers for transshipment was done by the Foreign Exporter and that M/s Raghav Alloys & Metals was in existence. 9. Learned Counsel submits in addition that Shri Rajan Arora, Partner cum H Card holder of M/s Sark Enterprises Delhi, stated on 23.02.2021 & 24.02.2021 that he had deposited the Customs Duty as well as other charges, upon instructions from Shri Sunil Kumar Proprietor, M/s KRV Enterprises; Shri Sunil Kumar stated on 24.02.2021 that the payment of Customs Duty as well as Shipping Charges were made as per instructions from Shri Love Sharma. 10. Learned Counsel submits also that the Respondent Department has foisted the case of import of dry dates mis declared as LMS, on the Appellant solely on the ground that Shri Jatinder Kumar was in charge of and in control of goods imported vide B/e 2086929 dated 22.12.2020 and 21023144 dated 24.12.2020; that the IEC of M/s Goyal Steel Industries an....
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....n who purchased the same and whose signature was appended in the register maintained with the Stamp Vendor; DRI did not ascertain the signatures attested before Notary Public; in the absence of substantive enquiry, it is not correct to hold the appellants responsible; moreover, the respondent denied the request of the Appellant for grant of Cross Examination as per Section 138 B of the Customs Act, 1962; the appellant had no role in the mis-declaration of the goods; subsequent statement by M/s Goel Steel Industries cannot be relied upon being self-contradictory and inconsistent. He relies on Suraj Mal AIR 1979 SC 1408; JKS AIR TRAVELS 2016 (331) ELT 173 (Mad.); Anil Kumar Shaw 2002 (140) ELT 263 (Tri. - Kolkata); Roshiban N.R. 2018 (364) ELT 594 (Tri. - Bang; Prem Narayan Doulatram Verma (41) ELT 116 (Tribunal). 13. Learned Counsel submits that the impugned order is liable to be set aside on the ground that it gives contradictory findings; the first part of the Order alleges that both the importing firms namely M/s Goyal Steel Industries as well as M/s Raghav Alloys & Metals were found to be Non Existent, as indicated in the Order, dated 08.02.2021, passed by Shri Atul Kasana, L....
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....umber; in the absence of the said DIN the said order extending time limit for further 6 months is invalid; CBEC Circular dated 05.11.2019 mandates that all orders/communication be issued with respective DIN; in terms of Para 4 of the said Circular, order dated 24.06.2021 extending time for issuance of Show Cause Notice is rendered as invalid being issued without any DIN; no reasons for not mentioning DIN were mentioned. Submissions on behalf of S/Shri (i). Yashpal Goyal (C/60261 /2022) (ii). Love Sharma(C/60263/2022) (iii). Rajan Arora (C/ 60262 / 2022), (iv). Sunil Kumar(C/60264/2022) 16. Shri Rahul Raheja, assisted by Gaurav Prakash, advocate for the above four appellants, submit that the allegation against Shri Yashpal Goyal was that he had knowingly given his IEC details to Shri Love Sharma for the purpose of import; Shri Yashpal Goyal is the sole proprietor of M/s Goyal Steel Industries engaged in the business of import and trading of Iron Scrap having been allotted IEC AKOPP3397B; they had authorized Sh. Love Sharma for import of two consignments "Light Melting Scrap" from Dubai (UAE); since Shri Love Sharma did not possess nece....
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....iding imposition of penalty under Section 112(a) of the Customs Act. 18. Learned advocate submits further that the show cause notice merely makes allegation of abetment without even discussing as to how the Appellants abetted the contravention; appellants acted in Bonafide belief. Hence, no penalty is imposable on the Appellant. He relies on Akbar Badrudin Giwani (1990) 2 SCC 203; Hindustan Steel Ltd (1969) 2 SCC 627; Sumeet Industries Ltd 2003 SCC Online CESTAT 978; Godrej Soaps Ltd 2004 SCC Online CESTAT 2821; Asian Paints (India) Ltd 2003 SCC Online CESTAT 1941. 19. Learned advocate submits that the impugned order is contrary to the facts and attendant provisions of law and if permitted to stand would result in grave miscarriage of justice; the impugned order is vitiated by non-application of mind as the learned Respondent has failed to apply his independent mind to the vital facts of the case and attendant provisions of law and hence the order is liable to be set aside. That the impugned order is a quasi-judicial order and it must be supported with cogent reasoning and if the same is absent then it is liable to set aside. He relies on State of Orissa Vs Chandra Nandi (201....
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....R (1) 489; Nanda Incorporated 2017 (11) TMI 252 - CESTAT CHENNAI; M/s. D.S. Cargo Service 2009 (247) ELT 769 (Tri.) and Neptunes Cargo Movers Pvt Ltd 2009 (246) ELT 621 (Tri. Mumbai) and 2007 (219) ELT 673 (Tri.). He submits that apart from statements no incriminating documents or other corroborated evidence has been relied upon in order to support, which itself is bad in the eyes of law as held in Rawf Re-Rollers, 2015 (317) ELT 499 (T). it was held in Nazir-Ur-Rahman 2004 (174) ELT 493 (CESTAT); Oceanic Shipping Agency 1996(82) ELT 57; Panorama Electronics 2001(130) ELT 877 (CEGAT) and Rupesh Bhai R Zaveri (2007) 217 ELT 386 (CESTAT), that if there is no evidence that the person knew or had reason to believe that goods are liable to confiscation, penalty cannot be imposed. 22. Learned advocate submits that the Appellants have neither placed any order on the foreign supplier nor are the owner of the said goods; even if the goods are liable for confiscation under Section 111(d) of the Act, no penalty can be imposed on the Appellants, as they are not, in any way, connected with the shipment; penalty is not be imposable on the Appellants also for the reason that the department has....
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....oods in question cannot be termed as 'prohibited goods' merely for mis-declaration in the Bills of Entry, for the purpose of imposing penalty under Section 112; even if we assume without admitting that Appellant has acted illegally for monetary gains, then also as per Section 125 of the Customs Act 1962, he is eligible to redeem the dry dated after payment of applicable duty and customs dues. He relies on * Commissioner of Customs Vs Deluxe Exports 2001(137) E.L.T. 1336(Tri. -Mumbai); * 1993 (67) E.L.T. 1000 (GOI) in the case of Kamlesh Kumar v. Collector of Customs; * 1994 (73) E.L.T. 240 (GOI) in the case of Jaspal Singh Banty v. Collector of Customs; * 1994 (73) E.L.T. 425 (CEGAT) in the case of V.P. Hameed v. Collector of Customs 24. Learned advocate submits that the impugned order erred in determination of value the impugned goods; department has not given any justification and have contravened provisions of law and have adopted Rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 straight, without exhausting the Rules 3-9 of CVR as specified; the revenue did not deliberately conduct any market inquiry proper....
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.... expedite clearance processes to avoid delays; there were compelling circumstances which led to pressure for clearance i.e. ongoing maintenance of the EDI System (25-27 Dec 2020) resulting in frequent disruptions and difficulties in logging into the system, the farmer protests (Oct-Nov 2020) and severe labour shortage; the Custodian (ICD Hind Terminal) failed to present the containers in time for examination, affecting timely clearance; as there were no container scanners, there were automated alerts on discrepancies in the imported goods. 27. Learned Counsel submits that the Inspector conducted physical examination and recorded the report in the EDI system.; the Appellant did not accompany the Inspector due to workload constraints; he relied on the Inspector's electronic report, which stated that the goods matched the declaration; the remark "in the presence of Superintendent" was a copy-paste entry from previous reports, not reflecting actual presence; the goods remained in the bonded Customs area and had not been released; DRI officials intervened and stopped all processing including further verification by Customs staff; had any misdeclaration been detected post-clearance, s....
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....sioner [2007 (217) ELT 392 (Tri-Bang)] * Ashok Kumar Singh vs. State of West Bengal [2016 (338) ELT 255 (Cal)] * P.N. Ram vs. CCE, Kanpur [2008 (225) ELT 294 (Tri-Del)] * CC, BANGALORE vs. M. NAUSHAD [2007 (210) E.L.T. 464 (Tri. - Bang.)] * A.P. SALES V/s CC, HYDERABAD [2006 (198) E.L.T. 309 (Tri. - Bang.)] 31. Learned Counsel submits also that the Commissioner wrongly relied on Golla Rama Rao vs. Union of India [2000 (124) ELT 112 (Mad.)], as that judgment actually upheld the limitation bar under Section 40(2) of the Central Excise Act, which is analogous to Section 155; further, the Supreme Court's order dated 23.03.2020 extending limitation due to COVID-19 does not apply to the issuance of show cause notices under Section 155(2); CBIC Circular No. 157/13/2021GST dated 20.07.2021 clarifies that the extension applies only to judicial/quasi-judicial proceedings like appeals and petitions not to the issuance of notices under GST laws which should also apply to Mutatis Mutandis to customs as well; the Impugned Order holds that there is dereliction of duty on the part of the Appellant as he has not performed the duty as per the Customs' law and p....
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.... on appellant vide letter F. No. DRI/ LDZU/856/ (INT-02)/(ENQ-1)/2020/1429 - 1431 dt. 21.09.2021 by ADG, DRI for the alleged offence dt. 26/27.12.2020; Adjudicating Authority failed to appreciate that the notice under section 155(2) of the Customs Act has been issued beyond limitation period of three months from the accrual of cause of action.it was held in MI Khan 2000 (120) ELT 542 (T), Sushma 2022 (379) ELT 376 (T) Rajiv Kumar Aggarwal - 2007-TIOL-1736-CESTAT-BANG and Vijender Singh & Others final order No. 60567-60568/2021 dt. 25.03.2021 in Appeal No. C/60042-43/2020, that protection against initiation of adjudication proceedings for imposition of penalty available to Customs Officer under Section 155 of Customs Act.; further Commissioner (Appeals), Customs & Central Excise, Chandigarh in similar case vide Order-in-Appeal No. 115-117/Cus/Ldh/2009 dated 27.09.2010 set aside the order-in-original imposing penalty on customs officers on the ground that proceedings initiated hit by time limitation under section 155 (2) of Customs Act. 34. Learned counsel for the appellants submits that the Adjudicating Authority erred in holding that time limit to issue notice under Section 155(....
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....ctorate General of Revenue Intelligence to be the Commissioner of Customs for the whole of India. Further, by this Notification, the Central Government has appointed Additional Directors, or Joint Directors, of Directorate of Revenue Intelligence posted at Headquarters and Zonal/Regional units as the Additional Commissioners or Joint Commissioners of Customs; and also that the Deputy Directors, or Assistant Directors, of Directorate of Revenue Intelligence posted at Headquarters and Zonal/Regional units have been appointed as the Deputy Commissioners or Assistant Commissioners of Customs for the whole of India. 37. Learned authorised Representative submits on the issue of absence of Document Identification Number (DIN) that the circumstances for non-issuance of DIN have not been recorded in the official file; however, the period pertains to the second wave of COVID 19 when the situation in the entire country was grim; the purpose of DIN was to ensure transparency in the indirect tax administration, to provide the recipients a digital facility to ascertain the genuineness of the communication; in the instant case the communication to the recipient was made by a mail of the Direct....
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....lso admitted that he had never met Yash Pal, proprietor of importer firm M/s Goyal Steel Industries nor had physically verified its functioning at the declared address; Form 'A', an authorisation from the importer, was handed over to him, not by Shri Yash Pal Goyal but by one Love Sharma (Love Sharma) but he did not know whereabouts of Love Sharma; Jatinder Kumar stated that M/s Raghav Alloys & Metals, the high seas seller of 05 containers to M/s Goyal Steel Industries, was in the name of none other than Manish Kumar, who worked for him on commission of Rs.200 to Rs.500 for arranging clients, collection of payments, etc; on being asked to produce record relating to his dealing, he stated that he had not maintained any correspondence or any other record relating to transactions with importer i.e. M/s Goyal Steel Industries as a Customs Broker. 39. Learned authorised Representative submits that the averments advanced by the Counsel for the appellants on the issue of SIMS registration, Cross-Examination of Exports are an afterthought and not required in view of the strong evidence against them; Cross Examination of co-Noticees is not required as held be Hon'ble Kerala High Court in....
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....h Court; in compliance of the Hon'ble High Court order, dated 05.10.2021, he was asked to appear for hearing on 20.10.2021 before passing Speaking Order; he did not appear for hearing nor submitted any Vakalatnama granting authority to any Advocate to cause appearance on his behalf; however, Advocate Shri Saurabh Kapoor sent an email on the day of hearing i.e. 20.10.2021, enclosing there with a Vakalatnama from one Shri Love Sharma along with an authority letter dated 22.10.2020 of M/s Goyal Steel Industries, vide which Shri Love Sharma was authorized by Shri Yashpal Goyal to do all acts on his behalf for the purpose of import & Clearance of goods at the port of Ludhiana; Shri Love Sharma is not reflected as importer in any Customs documents i.e. High Seas Sale Invoice, High Seas Sale Agreement (AP 542595), Declaration Forms; o payments pertaining to the Customs duty, the port handling charges and Shipping line charges were made by him and thirdly no email correspondence with the Shipping Line, Customs, Port authorities has been made by him. 42. Learned authorised Representative submits that though Shri Yashpal Goyal did not accept the ownership of the impugned goods, he was ask....
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.... Learned authorised Representative submits that Shri Yashpal Goyal, proprietor of M/s Goyal Steel Industries gave his IEC details to Shri Love Sharma for the purpose of import; Two bills of entry were filed in the name of M/s Goyal Industries; yet Shri Yashpal Goyal and Shri Love Sharma took no steps to ensure that only genuine imports were made; Shri Yashpal Goyal authorised Shri Love Sharma to further give Vakalatnama to advocate to advocate to appear before authorities as per directions of Hon'ble Punjab & Haryana High Court ; authority letter dated 22.10.2020 of M/s Goyal Steel Industries authorised Shri Love Sharma to do all acts on his behalf for the purpose of import & Clearance of goods at the port of Ludhiana; the name of Love Sharma is not reflected as importer in any Customs documents i.e. High Seas Sale Invoice, High Seas Sale Agreement (AP 542595), Declaration Forms; Shri Love Sharma accepted that he is an importer dealing in the import and trading of "Ferrous Scrap" and had imported various consignments of "Heavy Melting Scrap" ; substantial evasion by misdeclaration, is corroborated by statements of co-Noticees, independent evidence, customs records, physical examina....
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....ot performed the duty as per the procedure and examination report was put in EDI system even before examination or cutting the seals of the Containers. Both appellants averred that notice under Section 155 of the Act was not issued in time, that at the time of the cause of action, Covid pandemic was at its peak; issue of time bar is not applicable in the subject case as held in Golla Rama Rao 000(124) ELT 112 (Mad); Hon'ble Supreme Court held in the case of Bhagavan Barik AIR 1987 SC 1265 that a thing shall be deemed to be done in good faith where it is in fact done honestly whether negligently or not; the question of good faith is one of fact; the concerned person should show that the belief impugned in the statement had a rational basis and not just a simple belief and therefore, simple or actual belief is not enough. He submits that putting in EDI the remark, that Examination conducted in front of Superintendent & CHA, even without completing examination, by the Inspector an endorsement of the same by the Superintendent, shows that the actions of the appellants were not under any rational belief. He also relies on Hon'ble Supreme Court's decision in the case of Manilal Dhiklal A....
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....goods has been passed under section 110A, the specified period of six months shall not apply. 49. We find that Notification No. 17/2002-Customs (N.T.) dated 07.03.2002 issued by the Central Government, superseded Notification No. 19/90-Customs (N.T.) dated 26.04.1990. Vide the said notification ADGs, ADDs/JDs and DDs/ADs of the DRI were appointed as the Commissioners of Customs, AC/JC of Customs and DC/AC of Customs respectively, for the territorial jurisdiction of the whole of India. We also note that Notification No. 17/2002-Customs (N.T.) dated 07.03.2002 was further amended vide Notification No. 82/2014-Customs (N.T.) dated 16.09.2014, issued by the Board, with effect from 15.10.2014., where for the words "Commissioner of Customs", the words "Principal Commissioner of Customs or Commissioner of Customs" were substituted; and for the words "Additional Director General", the words "Principal Additional Director General or Additional Director General" were substituted. We find that the effect of the above notifications is that the Additional Director General, Directorate General of Revenue Intelligence posted at Headquarters and Zonal/regional unit has been appointed as Commiss....
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.... for issuing of the show cause notices in respect of goods seized at Nhava Sheva Mumbai, and therefore, it will be the jurisdiction of Mumbai Bench to deal with the appeal filed against the Order passed by the Commissioner in the instant case. 8. As far as the issue of SCN for extension of time by the DRI (HQ) Delhi is considered, is seen that the DRI Officer have been conferred with the power of Customs Officer under Section 4 of the Customs Act and hence they are competent to issue SCN, on that ground of having conferred all India jurisdiction. As far as the order of Hon'ble Calcutta High Court in case of Navneet Kumar v. Union of India & Others in W.P. No. 3336(w) of 2018 is concerned, the same stand modified by the order of Division Bench in the matter of Director General of Revenue Intelligence v. Navneet Kumar, MAT 844 of 2018 within CAN 7965 of 2018, wherein the operation of the order of Ld. Single Judge has been modified as under; "Appreciating the above prima facie case made out by the appellant no effect will be given to any finding in the impugned order that would divest the Directorate of Revenue Officer of power to function as Customs Officer or to in....
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.... (iii) Notification No. 186/F. No. 437/3/79-Cus. IV, dated 4-8-1981, issued by Central Government, vide which different classes of officers of DRI, were appointed as Collectors, Deputy Collectors and Assistant Collectors of Customs with respect to defined territorial jurisdictions; (iv) Notification 7-7-1997 issued No. by 31/1997-Cus. (N.T.), dated the Central Government, superseded Notification No. 38/63, dated 1-2-1963. Vide the Notification dated 31/1997, dated 7-7-1997, in Point No. 04 it is explicitly mentioned that all officers of Directorate of Revenue Intelligence officers are officers of Customs, the same is reproduced as under :- "Supersession of the Notification No. 38/63-Cus. - Appointment of Custom Officers. In exercise of the powers conferred by sub-section (1) of section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 38/63-Customs, dated 1st February, 1963 the Central Government hereby appoints the following persons to be the Officers of Customs, namely :- (1) to (3) xx xx xx (4) All Officers of the Directorate of Re....
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....ted not to pass extension order mechanically or as a matter of routine, but only on being satisfied that there existed facts which indicated that investigation could not be completed for bona fide reasons within the stipulated time. In the absence of extension of time, the importer/owner of the goods becomes entitled to release of the goods immediately under sub-section (2) of Section 110 of the Customs Act. Therefore, discretion under proviso to this sub-section for extending time for issuing show cause notice has to be exercised by the Commissioner judiciously after examining the material placed before him as his order extending the time would be affecting adversely the valuable right of the importer/owner of the goods who becomes entitled to receive back the goods if no notice within the stipulated period of six months from the date of seizure of the goods had been served on him. 9. The Apex Court in Assistant Collector of Customs & Superintendent, Preventive Service Customs, Calcutta and Others v. Charan Das Malhotra (supra) has draw a fine distinction between judicial and administrative functions of the Customs Officers under the Customs Act as under: - "The ....
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....d to be given to the owner within six months which cannot be extended without giving opportunity of being heard to the owner failing which the goods are liable to be returned to him." 11. The Tribunal also in a similar case of seizure of the goods under Section 110(2) of the Customs Act where extension of period was also sought under proviso to that section had held that an order passed under proviso to Section 110(2) of the Customs Act for extension of time for issuance of the show cause notice in respect of the seized goods is appealable under the provisions of clause (1) (a) of Section 129A ibid. 12. The observations of the Apex Court in antidumping case (Designated Authority v. Haldor Topsoe) supra, wherein investigation is required to be completed within one year, that extension of such a period is only administrative decision-based exigency of the case, are in fact not all applicable to the present case. The power of the designated authority in an anti-dumping matter to extend the period for completion of investigation cannot be equated with that of the Commissioner under proviso to sub-section 110(2) of the Customs Act as the power by the latter has to be e....
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.... summons, arrest memos, inspection notices etc. 57. We find that Circular No.37/2019 stipulates at Paras 3,4 & 5 as follows: 3. Whereas DIN is a mandatory requirement, in exceptional circumstances communications may be issued without an auto generated DIN. However, this exception is to be made only after recording the reasons in writing in the concerned file. Also, such communication shall expressly state that it has been issued without a DIN. The exigent situations in which a communication may be issued without the electronically generated DIN are as follows:- (i) when there are technical difficulties in generating the electronic DIN, or (ii) when communication regarding investigation/enquiry, verification etc. is required to issue at short notice or in urgent situations and the authorized officer is outside the office in the discharge of his official duties. 4. The Board also directs that any specified communication which does not bear the electronically generated DIN and is not covered by the exceptions mentioned in para 3 above, shall be treated as invalid and shall be deemed to have never been issued. 5. Any communication issued ....
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.... IEC holder. We find that the impugned order holds that Shri Jatinder Kumar was in charge of and in control of goods imported vide Bills of Entry No. 2086929 dated 23.12.2020 and No. 2103144 dated 24.12.2020; IEC AKOPP3397B of M/s Goyal Steel Industries and IEC ARDPK9716F of M/s Raghav Alloys and Metals was misused by him for the purpose of smuggling dry dates in guise of Light Melting Scarp by forging the necessary documents like High Seas Sale Agreement (AP 542595), Form-A, Declaration Form and High Seas Sale Invoice; he also made arrangements for payment of Customs duty, Shipping Line, port handling charges etc; therefore, in terms of provisions of Section 2 (3A) & Section 2 (26) of the Customs Act, 1962 Jatinder Kumar is the beneficial owner and importer of the goods. 60. We find that the impugned order confirms that M/s Secon Logistics, the Customs Broker and their Director, Shri Jatinder Kumar was the importer; Shri Jatinder Kumar masterminded the import of dry dates in the guise of Heavy Melting Scrap; he managed to get the IEC of M/s Goyal Industries through Shri Love Sharma; arranged for payment of Customs duties, freight charges and port charges etc through unconnected....
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....er of M/s MSC Mediterranean Shipping Company, stated that the containers for import of Light Melting Scrap were booked by M/s AEGON Shipping LLC, Dubai on behalf of the Shipper M/s Sama Al Jazeera Auto Used Spare Parts TR. LLC, Dubai; * Investigation concluded that M/s Raghav Alloys & Metals was not in existence, contrary to the evidence available and without conducting further investigation. * the allegation as alleged in the Show Cause Notice for making payments in respect of Customs Duty and/or any other charges by the Noticee are factually in correct in so far the Customs Duty as well as other charges were paid by M/s Sark Enterprises, New Delhi where the Authorized representative has categorically admitted that the said payments were made on the directions of Shri Sunil Kumar Proprietor of M/s KVR Enterprises and Shri Jatinder Kumar was not even known to him. * The Adjudicating Authority acknowledges and records while discussing the Role of Shri Yashpal Goyal that he was ready and willing to get the goods cleared upon payment of appropriate Customs Duty, Redemption Fine as adjudicated upon in terms of the provisions of Customs Act, 1962, in order to ....
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....ed in Customs Act, beneficial owner is defined to be a person who exercises effective control over the goods being imported or exported. We find that other than alleging, though, on the basis of statements recorded, that the said appellants had managed to get documents for import; customs duty payment through another customs broker and liaised with the shipping agents regarding the consignment in question, it is not evidenced as to how the appellants were exercising effective control over the goods. It is not the case of the Department that the appellants have paid for the consignment to the foreign exporter; arranged for shipping from overseas port to ICD, Ludhiana, arranged for trucks for removal of goods after the customs clearance. In fact, we find that the investigation could not identify as to who placed the order on the foreign exporter and as to who made the payment and the mode of payment thereof. 63. We are of the considered opinion that unless the pecuniary involvement of the appellants is established in the impugned import, allegation of being a beneficial owner cannot be sustained just because of the allegation that they have managed documents, managed payments towa....
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....e importer, as per Section 47 (2) of the Customs Act, 1962. Shri Rajan Arora accepted that the payments were made through M/s Sark Enterprises or Sark Cargo Services LLP on instructions from Sunil Kumar, Proprietor, M/s KVR Enterprises, Ludhiana. If the ownership of the goods is to be decided by the reason that the duty was paid, there is no reason as to why M/s Sark Enterprises could also have been regarded as the importer. 63.2. Coming to the allegation that M/s Secon Logistics/ Shri Jatinder Kumar were in touch with the shipping agent, regarding the imported consignments, through their official/ personal mail and this establishes the control that the appellant - customs broker exercised on the imported goods, we have gone through the e-mails and find that the gist of the E-mails were to ask/inform 'Please file IGM HTPL(INQR H6) subject B/L' and ' Please find below payment details against subject shipments' .The said e-mails appear to be the routine e-mails exchanged by any customer broker for the clearance of goods and as such, they do not constitute any incriminating information against the appellant - customs broker. 63.3. The appellant - customs broker submitted that th....
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....oint statements, cross-positioning one another. Therefore, it was imperative on the part of the adjudicating authority that an opportunity to cross-examination should have been given to the appellant - customs broker. We find that Hon'ble High Courts, in the cases of J & K Cigarettes Vs Collector of Central Excise - 2009-SCC-Online-Del-2645; Basudev Garg Vs Commissioner of Customs -2013-SCC-Online-Del-1447; Ambika International Vs UOI - 2016-SCC-Online-P&H4559 & Flevel International - 2016 (332) ELT 416 (Del.), held that principles of natural justice are violated in not granting the cross-examination of witnesses. 63.6. Further, we find that not only the cross-examination was not allowed before considering the statements, given under section 108 of the Customs Act, for arriving at the conclusion, the procedure contemplated under section 138B of the Customs has not been followed. Such statements could not have been relied upon as the procedure contemplated under section 138B of the Customs Act was not followed. This is what was held by the Tribunal in M/s. Surya Wires Pvt Ltd. vs. Principal Commissioner, CGST, Raipur (Excise Appeal No. 51148 of 2020 decided on 01.04.2025). The Tr....
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.... ............................................................ "28. It, therefore, transpires from the aforesaid decisions that both section 9D(1)(b) of the Central Excise Act and section 138B(1)(b) of the Customs Act contemplate that when the provisions of clause (a) of these two sections are not applicable, then the statements made under section 14 of the Central Excise Act or under section 108 of the Customs Act during the course of an inquiry under the Acts shall be relevant for the purpose of proving the truth of the facts contained in them only when such persons are examined as witnesses before the adjudicating authority and the adjudicating authority forms an opinion that the statements should be admitted in evidence. It is thereafter that an opportunity has to be provided for cross-examination of such persons. The provisions of section 9D of the Central Excise Act and section 138B(1)(b) of the Customs Act have been held to be mandatory and failure to comply with the procedure would mean that no reliance can be placed on the statements recorded either under section 14D of the Central Excise Act or under section 108 of the Customs Act. The Courts have also ex....
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....d was detected by DRI, the person/ firm whose IEC was used and in whose name the imports were made were not questioned and their initial claim that they have supplied the IEC details, Form-A etc. to Shri Love Sharma and relied upon heavily their later version and the fact that the documents were not signed by Shri Yashpal Goyal. It is on record that Shri Yashpal Goyal/ M/s Goyal Steel Industries/ Shri Love Sharma have approached the Hon'ble Punjab & Haryan High Court with two Writ Petitions No. 20282 of 2021 and No. 2103144 dated 24.12.2020 claimed ownership of the goods and requested for permission to re-export the impugned goods. It is on record that DRI did not oppose the petitions before the Hon'ble High Court. However, in terms of the directions given by the Hon'ble High Court a speaking order dated 20.10.2021 was issued to M/s Goyal Steel Industries replying firstly that DRI has jurisdiction to investigate the case, secondly, that the investigation is under progress; M/s Raghav Alloys, the High Seas Seller does not exist as the Proprietor Shri Manish Kumar was only an employee of the appellant - customs broker and thirdly that the impugned goods are prohibited for violation o....
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....otice and hold that Shri Yashpal Goyal/ M/s Goyal Steel Industries are the importers. We find that having permitted the use of their IEC number and having given import documents like Form-A and for the reasons discussed above and in the impugned order, the appellants have rendered themselves to penalty under Section 117 of the Customs Act, 1962 as proposed in the show cause notice. 65. As regards the other appellants i.e. Yashpal Goyal (C/60261/2022), Love Sharma (C/60263/2022), Rajan Arora (C/ 60262 / 2022), Sunil Kumar(C/60264/2022) we find that the charge against all the appellants is that they have abetted the fraud allegedly committed M/s Secon Logistics/Shri Jatinder Kumar as follows. * Shri Yashpal Goyal had knowingly given his IEC details to Shri Love Sharma for the purpose of import and had authorized Shri Love Sharma for import of two consignments "Light Melting Scrap" from Dubai (UAE) by way of Authority letter dated 22.10.2020 * Shri Rajan Arora paid customs duty, Shipping Line charges and port handling charges upon instruction from Sunil Kumar, proprietor of M/s KVR Enterprises. * Shri Love Sharma made available the IEC documents of M/ Goy....
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.... that dry dates were to be imported in the guise of Light Melting scrap; the investigation does not prove the presence of mens rea and it was not shown that the appellants had received any financial benefit out of their actions. We find that it is not the case of the appellants that they had no role to play in the fraud that has been committed; they submit that they had no mens rea. The appellants mainly rely on decisions where in it was held that mens rea is required for imposing penalty under Sections 112, 114A, 114AA of the Customs Act, 1962. We find that the cases are not comparable as the facts are not comparable. The appellants themselves rely on the case of Sri Kumar Agency 2008 (232) ELT 577 (SC) wherein it was held that each case is different and a single point can separate them. Relying on the same case, we find that the issue in the instant case is about the imposition of penalty under Section 117 of the Customs, Act 1962, which provides for penalty in cases where express penalty is not provided. In view of the discussion above, we have already discussed as to how Shri Yashpal Goyal abetted the fraud that has occurred in importing dry dates in the guise of Light Melting ....
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....liction of duty on the part of the Officer that he has not performed the duty as per the procedure and examination report was put in EDI system even before examination or cutting the seals of the Containers and that Since, the Officer has not performed his duty in prescribed manner which has resulted in the subject case. The Adjudicating Authority however concludes that the officers are found liable for penalty under Section 117 of the Act. We find that there is a force in the submissions of the officers. On the one hand the Adjudicating Authority finds that there is no abetment on the part of the officers and on the other hand confirms penalty on the officers. We are in agreement with the submissions of the officers that even if dereliction of duty is found the same doesn't constitute offence under Customs Act though the department is free to take any other action under relevant Rules. 66.2. We further find, as submitted by the appellants that the notice under Section 155(2) of the Customs Act has been issued beyond limitation period of three months from the accrual of cause of action. The reason advanced by the Adjudicating authority that the time limit was not applicable due ....