9911796707
TMI Blog2016 (3) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... artnership to Pvt. Ltd. Company. The appellant company operates in the Mumbai Commissionerate. Upon application of the appellant, they were permitted by the Ludhiana Commissionerate to operate w.e.f. 6-10-2006. On an average, the appellant company handled 2500 Bill of Entry each year, prior to passing of the impugned order. 2.1 In the normal course of business, the appellant also attended the clearance for imported goods on behalf of - (i) Jaldhara Cotspin Pvt. Ltd., (ii) Jaldhara Exports, (iii) Garg Woollen Mills (hereinafter referred to as the Importers or Jaldhara group) both at JN Port and ICD, Ludhiana. These firms and companies were family owned and managed, headed by Shri Brijlal Garg and his son Shri Binod Garg along with other family members. These firms/companies imported various types of yarn and Acrylic Fiber/Tow and also Textile Machinery from China and other country on payment of duty as well as under exemption from payment of duty, under the various schemes. The appellant had handled 45 Bills of Entry for these parties whereas 9 Bills of Entry relating to these parties were handled by other CHA (total 54 Bills of Entry were investigated). In the month of July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to the year 2007 and show cause notice has been issued in the year 2011, thus there being no proximity between the alleged offences and exercise of emergent power, the said order of suspension was revoked by the ld. Commissioner, and further regular inquiry was ordered. Thereafter, memorandum dated 2-4-2012 was issued inter alia alleging charges under 4 articles under the CHA Regulations 13(d), (e), (i) & (n). The appellant vide their letter dated 9-5-2012 denied all the charges and also prayed for furnishing of list of prosecution witness and other related documents such as, copies of Bill of Entry. Thereafter, the Inquiry Officer held inquiry on various charges. The Appraising Officer filed final report vide letter dated 23-10-2012. The appellant vide their letter dated 12-11-2012 filed the defence inter alia submitting, the Appraising Officer have committed grave errors, namely : - (i) That we have received the memorandum dated 2-4-2012 on 13-4-2012 and we were directed to file defence statement within 30 days from the date of receipt of the memorandum. (ii) That the copies of Bills of Entry along with all related documents such as invoice, B/L., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivities in respect of import consignment through sea route handled by them as CHA at Mumbai Port. The above mentioned three importers have submitted the fabricated documents showing value on lower side and misdeclaring the import goods to evade the Customs Duty as well as Anti Dumping duty, to the Customs. They were actually importing "Acrylic Fibre, classifiable under CTH 55033000" by mis-describing the same as "Acrylic Tow and thereby mis-classifying the same under CTH 55013000". The importers were also declaring less quantity than the actual quantity imparted in the import documents and simultaneously undervaluing the same with the sole intention to evade the Customs duty. They also acted in collusion with each other by adopting similar modus operandi in case of High Sea Sales of import consignments imported and sold among themselves. To justify their above illegal acts of misdeclaration in value, quantity and description and classification of the imported goods, the importers fabricated and forged various documents such as invoice, packing list, bill of lading, High Seas Sales Agreement and presented such forged/fabricated documents to the Customs in India in violation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice his client to comply with the provisions of the Act and to inform the Revenue in case of non-compliance. It is alleged that the CHA was aware about the actual description as well as actual quantity of the goods imported which is evident from the original copy of Bill of Lading giving the actual description of the goods and its quantity. On the back side of the Bill of Lading, the appellant-CHA have endorsed the same by appending their signature with rubber stamp. However, the Bill of Entry with wrong description as well as less quantity of the goods under import was filed. The ld. Commissioner has further observed that the subject Bill of Entry have been admittedly filed by the appellant on the basis of copies of invoices and Bill of Lading received by them through Fax from the importer. It is also fact that original copy of the Bill of Lading which were submitted to the shipping line for delivery order, bear the signature of representative of the appellant on the reverse thereof. It is further observed that in the course of deposition, the Director of the appellant company, Mr. Deepak Aggarwal stated that they used to compare checklist in the Bill of Entry on the basis of copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs only at the time of recording of statement under Section 108 by the Revenue authority was held untenable. Further, the deposition of defence witnesses Shri Sunil Soma Singhwan (employee of CHA) clearly shows that the appellant failed to compare the original Bill of Lading with the fax copy of the same and as the appellant was dealing with the said importer over a longer period of time, they did not suspect their wrong doing and malice on part of the importer. It is further observed that in respect of the same Bill of Entry, the documents such as Bill of Entry, invoice and Bill of Lading have been fabricated for dual use - one to be shown to the Customs for clearance and other to the Bank for the purpose of sending correct remittance. So far the defence of the appellant, they cursorily glanced the fax copy and the original copy, and found to be same, and moreover there being no standing order and/or guidelines, which mandate the comparison of original with fax copy. This defence was found to be not tenable. It is further observed that by comparing the originals with the fax copies, the appellant would have been in a position to detect the discrepancies and the resulting fraud com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. The inquiry officer has not referred to the statement nor any evidence which has come on record during the inquiry proceedings, and have mechanically drawn inference and held the charge as proved. The fact which has come out from the statement dated 5-2-2011, that Shri Deepak Aggarwal or any of the employees of the appellant were aware of the misdeclaration till the date and time of recording of the statement on 5-2-2011, the said contention was rejected on observing that the CHA was sufficiently experienced and well versed with the technicality of fabrics. Further, the CHA had long association with the importers in making clearance of fabrics. Further, it has been admitted by Shri Deepak Aggarwal that he failed to take notice of the difference in the fax copy and original copy of the documents. It is further observed that it is an admitted fact that in respect of some consignment, the appellant-CHA had become aware of the description of the goods when the original Bill of Lading was received by them. Further, observing that the appellant could have noticed the discrepancies and could have advised the importer to rectify the mistake and appellant could also have alerted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms duty and accordingly were charged under Regulation 13(n). The learned Commissioner observed that the IO has held this charge proved primarily on account of the fact that Mr. Deepak Aggarwal in his statement dated 5-2-2011 has admitted that the appellant have failed to compare the invoice/Bill of Lading received by Fax and the original received through courier later on and they have failed to correct their mistake in respect of the description of the goods and in this way they have failed to perform their duties required under Regulation 13(n). The appellant's contention that the charge/allegation of misdeclaration does not stand as it is nowhere alleged that the CHA was aware of any such misdeclaration and only allegation is that the Bill of Entry is filed by the CHA, the same amounts to violation of Regulation 13(n). Further, contention of the appellant that IO has erred in holding the charge established without discussing any evidence which is relied upon by the prosecution, on the defence advanced by the appellant. The learned Commissioner observed that the finding of IO with respect to this charge is that the appellant-CHA was hand in glove with the importer in clearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 'Tow' with 'Fiber'. The second Bill of Lading, original and duplicate are otherwise same line by line and column by column. Thus, in respect of invoice and Bill of Lading received by CHA through fax, shows the description of acrylic tow, whereas the Bill of Lading received by the Revenue through Bank shows that the goods are acrylic fiber. Similarly, with regard to Bill of Entry 760363, dated 15-5-2007 relating to Bill of Lading No. APLU 027593873 - that as per the invoice & Bill of Lading received through Fax, shows the description as 'acrylic staple fiber'. The weight in the said two documents have been shown at 43,824 kgs. whereas in the copy of original Bill of Lading received by the Revenue through the Bank, the quantity shown is 51,824 kgs. Thus, the importer was allegedly declaring less quantity and/or value for evading customs duty by misleading both the appellant-CHA and the Revenue, whereas it was filing the correct Bill of Lading or invoice before the Bankers for remitting the amount to the overseas shipper. Further, these Bills of Entry have been examined as per the examination report dated 17-5-2007 by the Customs authorities, wherein it is recorded that opened and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original documents through courier from the said 3 firms of Garg family. I want to submit that all the documents being received by courier were compared with the fax copy of Invoice & Bill of Lading received by us earlier through fax on the basis of which we have already presented/filed bill of entry to Customs through online. On enquiry I state that original document of Bill of Lading received through courier was used to be having signature of Bank Authorities & Shri Raman Garg or Shri Jagmohan Garg as the case may be and this original copy of Bill of lading was used to be submitted to the shipping line after appending my signatures or signature of my employees on the back side of this copy of Bill of Lading for getting delivery order from the shipping line. In the meanwhile after getting the Bill of Entry processed from the Customs, we used to inform Shri Vinod Garg or Shri Raman Garg about the duty liabilities & other port charges. After this they used to deposit Customs Duty & other charges in lumpsum in our roaming A/C No. 01102300000024 maintained with HDFC Bank. They after depositing the amount used to inform us telephonically and we further proceeded for getting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, which was received subsequently through courier for the purpose of obtaining delivery order from the shipping line and as such violated the provisions of CHALR and connived with the importer. 5.7 It is further urged that none of the charges stand proved against the appellant-CHA. The facts which are evident from statements (of appellant's Director and employee) and copy of documents on record is that the importers have misled the CHA by supplying separate set of documents at the time of filing of the Bill of Entry and after passing of the Bill of Entry have supplied separate set of documents being original Bill of Lading to be filed with the shipping line for obtaining delivery order, and further have forged and fabricated Bill of Entry for the purpose of filing the same before the Bank for remittance of actual purchase amount. Further, it is evident from the scrutiny of the documents that it is only a minor difference (manipulation) which is not evident to a man of ordinary prudence unless one examines the document with an investigative eye. The documents are one and the same line by line and column by column save and except instead of the word 'tow', the word 'fiber' h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fax copy of the Bill of Lading and invoice as compared to the original Bill of Lading could not be noticed by them. It is also stated by Mr. Singhwan that in absence of any suspicion as the documents look alike they have compared the Bill of Lading No. and Container No. before forwarding the original Bill of Lading for obtaining delivery order. It is further added that nowhere it have come on record that the CHA knowingly made any misdeclaration in filling and processing of Bill of Entry and/or the import documents. 5.11 It is also urged that the learned Commissioner failed to appreciate that the appellant have handled about 45 Bills of Entry for the importers, after the first few Bills of Entry being processed there being nothing suspicious and/or illegal found, the appellant developed trust in their dealing with the importers and as such in absence of suspicion could not notice minor manipulation committed later on. It is further urged that in the facts and circumstances, the only thing which have come to light is that, had the appellant-CHA been very vigilant and would have scrutinized and/or compared each and every documents line by line, they could have noticed minor m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in some Bills of Entry (5 in No.), importers have resorted to giving forged and fabricated documents through fax to the appellant-CHA for filing the Bill of Entry by making minor alteration in the quantity or description or value, which cannot be noticed by a man of ordinary prudence. No facts are coming on record to indicate that the appellant-CHA have aided and abetted the importers in evasion of customs duty. However, evidences which have come on record indicate that the importers have misled successfully the CHA, Revenue and Bank by fabrication and forgery of documents being minor manipulation, which is not easily made out unless one compares the documents with the investigative eyes. We are satisfied about the facts after going through the copy of documents produced before us and filed during the course of hearing. The original and forged documents look all the same at the first glimpse. Only on careful scrutiny the difference and/or manipulation committed could be noticed. As such, we find that the learned Commissioner is in error, in absence of any finding of aiding and abetting, in holding the charges as proved under Regulations 13(d) & (e) as proved. We also take notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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