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2024 (4) TMI 831 - AT - CustomsLevy of penalty for abetment - Fraudulent export of substandard goods by description in the shipping bills filed by the exporter - Value for undue DEPB benefit - Subletting CHA license - Liability of a Customs Broker - license used for monetary consideration - signing of blank shipping bills and allowing license to be used - consignments of inferior quality of fabrics after mis-declaring the goods as Ladies nightwear - value rejected u/s 14 of the Customs Act - Penalty - Misrepresentation as the employees of the CHA - HELD THAT - The appellants in the present appeals do not dispute any of the facts that have been part of the impugned order except to state that there is no evidence to show that they were aware of the fact that the goods were of inferior quality and they had knowledge of the undue benefit that the exporter was availing by mis-declaring the goods and the value. They also stated that remittances were received without any proof of the same. The exporter had not disputed the alleged offence nor had contested the alleged offence of misdeclaration of goods and value. Shri Surendran (Appellant 1) having arranged containers and advising them to ensure factory sealing so that it is not opened at ICD Bangalore; arranging a CHA and getting the blank shipping bills signed by the CHA admittedly for monetary consideration; getting a letter from the exporter not to export substandard goods and charging unusually high price for containers, all goes to prove the mala fide intention behind these exports. Moreover, the same team has worked for similar exports at Hyderabad ICD, thus, without doubt all the circumstantial evidences clearly prove their involvement in mis-declaring goods and value for undue DEPB benefit. Shri Ashok Shukla (Appellant 2) also admits having sublet his license for monetary consideration, signing of blank shipping bills and allowing his license to be used without knowing the exporter and what for it is being used goes to prove that he is not clean in his intentions. Both the appellants have also admittedly misrepresented to the customs about their employees and enabled them to get the ID cards from the customs by misrepresenting that they were the employees of the CHA. Therefore, the admitted facts do not provide any immunity to the appellants. The reliance placed on the decision of the Hon ble High court in the case of Rajeev Khatri Vs. Commissioner of Customs (Export) 2023 (7) TMI 218 - DELHI HIGH COURT is not applicable in the facts of the present case where none of the statements and the irregularities committed by them have not been retracted. Abet means instigating, conspiring, intentionally aiding the acts of commission or omission that render the goods liable for confiscation. The facts discussed above clearly spell out the commissions and omissions of both the Appellants where the goods were made liable for confiscation. The notice clearly alleges the penalty to be levied un/s 114 of the Customs Act, 1962 and though, the Commissioner in the penultimate order had not specified Section 114; from para 59 to 61 of the impugned order it is clearly held that penalty is imposed u/s 114 for violation of the provisions u/s 113 and the Foreign Exchange Regulation Act, 1947. DEPB licenses were cancelled and the DEPB credit of Rs.98,54,987/- is denied, and the exporter having penalised, it would be fair to reduce the penalty to Rs.5,00,000/- on each of the Appellants. Accordingly, the penalty stands reduced to Rs.5,00,000/- (Rupees Five Lakhs Only) on Appellant 1 (Shri Surendran) and Rs.5,00,000/- (Rupees Five Lakhs Only ) on Appellant 2 (Shri Ashok Shukla). Appeals are partially allowed on above terms.
Issues Involved:
1. Fraudulent export of substandard goods. 2. Misuse of Custom House Agent (CHA) services. 3. Violation of DEPB Scheme and Customs Act provisions. 4. Imposition of penalties on appellants. Summary: Issue 1: Fraudulent export of substandard goods M/s. Globe Fashions (Exim) India exported consignments declared as Ladies nightwear but were actually inferior quality rags. The investigation revealed that no remittance was received for these consignments, and the exports were thus deemed improper and unlawful, leading to the rejection of DEPB credit worth Rs. 98,54,987/- and freezing of 5 DEPB licenses. Issue 2: Misuse of Custom House Agent (CHA) services Shri D. Surendran (Appellant 1) used the services of M/s. Cargo and Travel Services Pvt. Ltd., represented by Shri Ashok Shukla (Appellant 2), to clear the consignments. Appellant 1 admitted to using blank signed shipping bills provided by Appellant 2 and falsely obtaining identity cards for his employees by claiming they were employees of the CHA. Both appellants admitted to their roles in facilitating the fraudulent exports. Issue 3: Violation of DEPB Scheme and Customs Act provisions The Commissioner found that the appellants had abetted the fraudulent exports, violating Section 113 and Section 114 of the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1947. The goods were exported fraudulently, and the appellants' actions warranted penalties under Section 114 of the Customs Act. Issue 4: Imposition of penalties on appellants The Commissioner imposed a penalty of Rs. 15,00,000/- each on Appellant 1 and Appellant 2. However, considering the cancellation of DEPB licenses and denial of DEPB credit, the penalties were reduced to Rs. 5,00,000/- each. The appeals were partially allowed on these terms. Conclusion: The appellants were found guilty of facilitating fraudulent exports and violating customs regulations. The penalties were reduced but upheld, reflecting their involvement in the fraudulent activities. Appeals were partially allowed.
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