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TMI Blog2016 (5) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... vez 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 shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and Licence Number of appellant as Customs House Agent. Seized container was stuffed from factory and destined to Port Jebel Ali, Dubai. On examination, the container was found to contain 9540 kg of Red Sanders Wood Logs an item prohibited for export. The said container of Red Sanders Wood Logs valued at ₹ 1,04,94,000/-. In the shipping bill the goods declared was Printed Packaging Material and shows to have stuffed from M/s. Sweet Industries India Pvt. Ltd., Mulund under IEC No. 0389038083. Earlier one more shipping bill No. 9328952, dated 3-2-2011 was filed under the same IEC No. and CHA No. 11/693 of M/s. Daroowalla Bros. Co., that the said shipping bill was generated in the EDI system ICES, JNPT, Nhava Sheva and subsequently purged due to no follow up by the exporter/CHA and no export took place against the said Shipping Bill. 2.1 The preliminary enquiries indicated that forged documents and fake container seal were used in the said attempted export (Shipping Bill No. 9393549, dated 22-2-2011) that Shri Sanjay Patil and Shri Ravindra Chaudhari, DEO, CMC, EDI Centre, Dronagiri in their statements dated 24-2-2011, named Shri Shailesh Bhanushali, Employee of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 duty bound to verify Shipping Bills and Bills of Entry filed in EDI System on their PAN number and inform the department in case any discrepancy is noticed. It was alleged that CHA had not followed the said procedure; that CHA in this case allowed Shri Shailesh Bhanushali, an unauthorized person to routinely handle the export documents and even file the Shipping Bills which shows utter failure of the CHA to control/supervise the action of its employee. It was also alleged that CHA has not exercised due caution nor have they taken any measures to prevent the mis-use of their CHA Licence. 2.2 In view of the above investigation, licence of the appellant was placed under suspension vide order No. 01/2011, dated 5-4-2011 and thereafter inquiry proceedings were conducted. Various articles of charges were framed under Regulations 13(b), 13(j), 13(n) and 19(8) of CHALR, 2004. On the above charges inquiry officers submitted their inquiry report vide letter dated 23-7-2014 wherein it was reported; (a) Article of Charge-I : This article of Charge was proved again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i S. Subba Reddy, ld. Counsel for the appellant made submissions on merit as well as on limitation. On merit ld. Counsel submits that the appellant is not at all involved either in the documentation or in the clearance of alleged, attempted smuggling of Red Sanders Wood Logs. He submits that from the entire enquiry of the present CHA case, it is revealed that the persons involved in the documentation are appellant s temporary and unauthorised employee Shri Shailesh Bhanushali, CMC employees Shri Sanjay Patil and Shri Ravindra Chaudhari. It is his submission that these persons have colluded and conspired the entire job of documentation and filing thereof in CMC. Shri Shailesh Bhanushali is a temporary employee of the appellant and he is not authorised to submit the documents on behalf of the appellant at CMC. When this is so, the employees of the CMC were also not supposed to accept the documents from an unauthorised employee. Shri Irani, partner of the appellant s firm in his statement categorically stated that the job of Shri Shailesh Bhanushali was confined to only handover the documents to their authorised employee who in turn submit the same to the CMC. Therefore, submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thoka number is required, without which CHA would not know that such shipping bill was filed. This is because Customs House EDI system did not give the list of shipping bills which are filed at the Service Center. Only those shipping bills filed online get displayed on the system during the relevant period. For the Shipping bills filed at service centre, the Thoka number will have to be entered to see the status of such shipping bills. In case of M/s. Sweet Industries India Pvt. Ltd., the documents were filed without the knowledge of the appellant and on the basis of false documents, such shipping bill has not been reflected in the system. Therefore, it cannot be said that the appellant have not discharged the obligation cast on them under the said facility notice and public notice. The ld. Counsel submits that in view of the above explained facts which are part of the proceedings before the enquiry/presenting/adjudicating authorities, it is established that the appellant are neither connected to the alleged attempt of smuggle of the Red Sanders nor to the documentation related thereto. He further submits that entire proceeding is time bar therefore, the order is also not sustaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2012 (286) E.L.T. 704 (Tri. - Mumbai)] (f) Sharp Logistics Pvt. Ltd. v. Union of India [2013 (290) E.L.T. 321 (Bom.)] (g) Commissioner v. Sharp Logistics Pvt. Ltd. [2014 (308) E.L.T. A48 (Bom.)] (h) Concorde Zoom v. Comm. of Cus. C. Ex. Service Tax, Hyderabad [2013 (291) E.L.T. 298 (Tri. - Bang.)] (i) Suhas H. Pophale v. Oriental Insurance Company Limited and its Estate Officer [(2014) 4 SCC) 657] (j) A.M. Ahamed Co. v. Commissioner of Customs (Imports), Chennai [2014 (309) E.L.T. 433 (Mad.)] (k) Commissioner of Cus. (Sea Port Import), Chennai v. CESTAT, Chennai [2014 (310) E.L.T. 673 (Mad.)] 4. Shri S.J. Sahu, ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that on the basis of enquiry report, charges have been proved by conducting enquiry against various person and on their confessional statements. On the basis of enquiry it has been proved that the appellant is involved in the alleged offence of illegal export of Red Sanders Wood Logs therefore, order is just and proper which does not require any interference. As regard limitation, he submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt and confirm the contents of the said statement? A.1 I have read the above said statement and I state that I confirm the contents thereof except the portion relating to the Facility Notice and Public Notice on page 2 of the said statement. Regarding the Facility Notice and Public Notice, I wish to state that at the material time, details of only the shipping bills which are filed on line would be available and if any shipping bill is filed by the any unauthorized person by submitting the forged or fabricated documents, the CHA will not be able to know that such shipping bill has been filed. I also say that to be able to view status of any shipping bill where documents are submitted at the Service Centre, the Thoka Number will be required. Without such Thoka Number, a CHA will not be able to know that such a shipping bills has been filed. This is because the Customs House EDI system did not give the list of shipping bills which are filed at the Service Centre. Only those shipping bills which are filed on line get displayed on the system during the relevant period. If any document are filed at the Service Center, to be able to see the status of such shipping bills, the Thoka num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.4 I was working for M/s. Daroowalla Bros., Co. for 6 to 7 months prior to the case detected in February, 2011. Q.6 Whether you were attending to any other work apart from loading and unloading of export cargo? A.6 Yes. I was submitting documents for check list for shipping bills for M/s. Daroowalla Bros. Co. at the CMC counter. Q.7 Did you have any Customs pass? A.7 No, I did not have Customs pass. Q.8 Did you ever sign Check list of any other document for M/s. Daroowalla Bros. Co.? A.8 No. I never signed any document on behalf of M/s. Daroowalla Bros. Co. Q.9 I am showing you the photocopy of the Check list filed for S/B No. 9393549, dated 22-2-2011 which contain signature which reads as Shailesh Please identify whether this signature is yours. A.9 I have seen the said signature and I say that this is not my signature although the name reads as Shailesh. Q.10 How did CMC accept the documents submitted by you on behalf of M/s. Daroowalla Bros. Co. even though you did not have Customs pass. A.10 I was introduced to CMC staff by Shri Parvez Irani for submission of documents/Check list on behalf o/s. Daroowalla Bros. Co. Q.11 Did you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be accepted even without such copy of Customs pass especially when the CHA employee is known to the CMC staff or when a person is introduced to them by the CHA. Q.11 Is it correct that you have also given two more statements dated 23-2-2011 and 24-2-2011 under Section 108 of the Customs Act, 1962 and in both the statements you have mentioned that you had submitted the documents at the instance of on Punit? A.11 Yes it is correct. In fact in all the statement I have correctly stated that the documents relating to shipping bill No. 9393549, dated 22-2-2011 were submitted at the instance of one Punit. Q.13 I request you to kindly page 3 of your statement dated 21-3-2011 wherein in the last sentence you have mentioned on being asked, I state that I had not infomed Shri Parvez Irani, Proprietor of CHA M/s. Daroowalla Bro. Co. about filing of shipping bill No. 9393549, dated 22-2-2011 or any details about the consignment . Is this correct. A.14 Yes it is correct. Q.16 I put it to you that your evidence given in reply to the Question Nos. 12 and 13 that the documents relating to shipping bill No. 9393549, dated 22-2-2011 were submitted as per the instructions of Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesh Bhanushali, that these last page is photocopy of document of some other consignments. On perusal of the documents, we find 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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