2016 (5) TMI 499 - AT - Customs

Revocation of CHA licence and forfeiture of security deposit - Seizure of Red Sanders Wood Logs - alleged involvement in documentation in respect of consignment of Red Sanders Wood Logs attempted to be exported which is prohibited and not allowed for export - Held that - it is absolutely clear that documents was forged and last page of declaration which appears the signature is not signed by the appellant or his partner for the purpose of clearance of Red Sanders Wood Logs. This made very clear that documents which is used for clearance of Red Sanders Wood Logs has not been signed by the appellant or his partner or any other authorized person. It is also apparent on record from the entire proceedings that the documents was forged which was submitted by Shri Shailesh Bhanushali on his own and who was not authorized to submit the documents. Even CMC staff has also made serious mistake in accepting the documents from an unauthorized person which resulted into serious offence of attempted smuggling. From enquiry and statement of Shri Parvez Irani, it clearly appears that Shri Shailesh Bhanushali on his personal capacity colluded with the exporters for clearing the Red Sanders Wood Logs and from entire modus operandi which he has adopted, it is found that appellant or his partner is nowhere concerned either in the preparation of the documents or submission thereof. It is also found that there is allegation on the appellant for non-compliance of the Facility Notice No. 41 of 2009, dated 10-7-2009 and Public Notice No. 10/2010, dated 3-2-2010 according to which CHA is supposed to check and verify online the shipping bills filed in their name, so that if such forged shipping bill is filed, the same can be detected and smuggling of Red Sanders Wood Logs could be avoided. In this regard, we agree with submission of the appellant that at material time details of only those shipping bills which are filed online would be available. In the present case shipping bill was filed at the CMC for which Thoka Number is required without which CHA would not know that such shipping bill was filed, this because Customs House EDI system did not give the list of shipping bills which are filed at the Service Centre, only those shipping bills filed online get displayed on the system during the relevant period. Since the documents filed without knowledge of the appellant, the shipping bill has not been reflected in the system. This explanation given by the appellant was found satisfactory. Even if it is assumed that there is failure on the part of the appellant regarding non-compliance of facility notice and public notice that they have not checked filing of said Shipping Bills online, that alone does not suggest that appellant was involved in the documentation or in clearance of attempted smuggling of the goods. The charges have been proved only on the basis of statement of Shri Shailesh Bhanushali which is unauthorized employee and he was not authorized to file any documents and the documents was also forged and there is no corroborative evidence to support the statement of Shri Shailesh Bhanushali. Moreover Shri Shailesh Bhanusftali has subsequently changed his statement in examination and re-examination that filing of forged documents to the CMC was not known to the appellant. Therefore, the appellant is nowhere involved in the alleged smuggling or submission of forged document related thereto or abetted to the said offence. The impugned order revoking the CHA Licence is not legal and proper. - Decided in favour of appellant

Issues Involved:
1. Revocation of CHA License
2. Forfeiture of Security Deposit
3. Alleged Involvement in Smuggling
4. Unauthorized Submission of Documents
5. Non-compliance with Public Notices
6. Limitation and Time Bar

Issue-wise Detailed Analysis:

1. Revocation of CHA License:
The appeal was directed against the revocation of the CHA License of M/s. Daroowalla Bros. & Co. The Commissioner of Customs (General) ordered the revocation based on the involvement of the appellant in the attempted smuggling of Red Sanders Wood Logs. The Tribunal examined whether the appellant was involved or facilitated the alleged offense. It was found that the shipping bill was submitted by a temporary employee, Shri Shailesh Bhanushali, without the appellant's knowledge. The Tribunal concluded that the appellant was not involved in the smuggling or the submission of forged documents.

2. Forfeiture of Security Deposit:
The entire security deposit of M/s. Daroowalla Bros. & Co. was forfeited. The Tribunal, however, found that the appellant was not involved in the alleged offense. The documents submitted were forged, and the appellant's partner was not aware of the submission. Therefore, the forfeiture of the security deposit was deemed unjustified and was set aside.

3. Alleged Involvement in Smuggling:
The Tribunal examined the statements of various individuals, including Shri Shailesh Bhanushali and employees of the CMC. Initially, Bhanushali stated that the filing of the shipping bill was with the appellant's knowledge, but later he denied it. The Tribunal found that the appellant or his partner was not involved in the preparation or submission of the documents. The documents were forged, and the appellant was not aware of the attempted smuggling.

4. Unauthorized Submission of Documents:
The appellant was charged with allowing an unauthorized person, Shri Shailesh Bhanushali, to submit documents. Bhanushali, a temporary employee, submitted the documents without the appellant's authorization. The Tribunal found that the CMC staff made a serious mistake in accepting documents from an unauthorized person, which led to the attempted smuggling. The appellant was not responsible for this unauthorized submission.

5. Non-compliance with Public Notices:
The appellant was accused of not complying with Facility Notice No. 41/2009 and Public Notice No. 10/2010, which required CHA to verify shipping bills filed in their name. The Tribunal accepted the appellant's explanation that at the material time, details of only those shipping bills filed online were available. The shipping bill in question was filed at the CMC, and the appellant could not have known about it. Therefore, the non-compliance alone did not suggest the appellant's involvement in the smuggling.

6. Limitation and Time Bar:
The appellant argued that the proceedings were time-barred as the adjudication took more than four years from the date of the alleged offense. Although the Tribunal did not delve deeply into the limitation aspect, it noted that the delay in proceedings was beyond the control of the adjudicating authority. However, since the appeal was decided on merit, the Tribunal did not consider the aspect of limitation in detail.

Conclusion:
The Tribunal set aside the impugned order, revoking the CHA License and forfeiting the security deposit, and allowed the appeal. The appellant was found not to be involved in the alleged smuggling or the submission of forged documents. The charges were primarily based on the statements of an unauthorized employee, which were not corroborated by any other evidence.

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