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TMI Blog2016 (9) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of intelligence it was gathered that M/s. Cosmos Enterprises had filed certain shipping bills in respect of container No. RWAU 1202394, which was lying in NSICT Terminal OF JNPT, Nhava Sheva. The said container was called back from NSICT Terminal JNPT to the premises of container Coporation of India Ltd, Dronagiri Rail Terminal and it was examined under Panchanama on 1/11/2006. It was noticed that consignment of Gents T Shirts covered under five shipping bills Nos. 463726, 4693727, 4693728, 4693732 and 4693732 all dated 23/10/2006 with declared value of Rs. 87,64,800/- and drawback involved Rs. 6,83,654/- filed in the name of M/s. Cosmos Enterprises had been stuffed in the said container. The description of the goods covered under all the above five shipping bills was given as Readymade Garments-Gents T Shirts, the declared price was USD 6.40 per pc and Drawback per piece was claimed @ 7.8 % of the FOB value i.e. Rs. 22.79. The representative samples of the said consignment were sent to 'The Textile Commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll for this work; that Shri. Satyajit Sinha informed that Shri. Hamid Majid Shaikh was the owner of M/s. Cosmos Enterprises, who was out of station. Shri. Tukaram Dongre stated he had neither met nor seen Shri. Hamid Majid Shaikh personally and that he had not obtained any authority letter from M/s. Cosmos Enterprises in respect of handling of Customs clearance of their goods. Report on misuse of drawback scheme was communicated by the DRI officers vide show cause notice dated 23/10/2008 and the same was received in the office of commissioner on 11/11/2008. In view of the above inquiry, proceedings against appellant, invoking of provisions of regulations 20(2) of CHALR, 2004 was initiated. License of the appellant was placed under suspension vide order No. 70/2008 dated 19/11/2008, however suspension was revoked subsequently by the commissioner vide order No. 140/2009 dated 4/3/2009. During the inquiry proceedings notice dated 23/12/2008 was issued to the appellant wherein article on charges were leveled for the alleged contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with view to avail higher rate of drawback. With the expertise of CHA, it was mandatory on the part of the CHA to exercise due diligence in respect of drawback consignment. CHA has blindly accepted documents and not advised their client therefore the CHA violated Regulation 13(d) of CHALR, 2004. (c) Ld. Commissioner as regard the 13(n) contended that since CHA did not possess authority letter, acceptance of clearance work through unauthorized person indicates that the lapses of CHA in carrying out clearance work properly, hence CHA has failed in efficiently discharging of their obligation as Custom House Agent. Therefore they are culpable for violation of regulations 13(n) of CHALR, 2004. In view of the above findings, the Ld. Commissioner passed revocation order which is under challenge before us. 3. Shri. A.K. Prabhakar, Ld. Counsel for the appellant submits that the revocation order passed by the Ld. Commissioner holding that there is violation of provisions of Regulations 13(a), 13(d) and 13(n) of the CHALR, 2004. For holding this, entire basis is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by the exporters, it is obligatory on the part of the CHA to advise their client. But in the present case there was no apparent discrepancy either in the goods or in the documents therefore contention of the Ld. Commissioner that appellant have not advised their client does not stand. He further submits that it is fact on record that appellant was paid only Rs. 500/- per documents which is very reasonable as CHA charges, even this proved that appellant are nowhere concerned with any malafide act, if any, on the part of the exporter, as appellant has not been benefited on that account. He also refers that penalty against the appellant has been set aside by the Commissioner (Appeals) vide Order-in-Appeal No. 38(Adj-Exp)/2016(JNCH)-Appeal -I dated 31/3/16 which was imposed by the Adjudicating authority under Section 114(iii) of Customs Act. He submits that since in the customs case related to present CHALR proceedings, the appellant was exonerated from the penalty, this proved that appellant had no role in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Vs. M/s. K M Ganatra & Co [2016-TIOL-13-SC-CUS] (b) P.B. Nair C& F Pvt Ltd Vs. Commissioner of Customs(General) Mumbai[2015(318) ELT 437(Tri. Mumbai)] (c) Delta Logistics Vs. Commissioner of Central Excise, NCH, Mumbai [2014(309)ELT 171(Tri. Mumbai)] (d) Noble Agency Vs. Commissioner of Customs, Mumbai[2002(142) ELT 84(Tri. Mumbai)] 5. We have carefully considered the submissions made by both sides and also gone through case laws cited by rivals. 6. We find that in the present case the offence on the part of exporter is that they mis-declared the goods inasmuch as readymade garment made of 100% cotton falling under chapter heading 6109.01 was mis-declared under tariff item No. 6109.03 thus drawback, instead of 6.7% it was claimed @ 7.8 %. The difference of the quality could be known only after the samples were got tested by the customs authority from Textile Committee. This itself shows that anybody from eye estimation cannot know, even custom authority could not know that the garment is made of 100% cotton or otherwise. Appellant being CHA acted as a CH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignature on the authority letter was not tallying. We find that the Ld. Commissioner has not made any efforts to investigate in the matter of signature therefore it was not conclusively proved that authority letter is not genuine. Ld. Commissioner in one hand contended that the signature on the letter is not tallying and on the other hand said that authority letter is in respect of earlier exports this itself contradicts his stands. We further observed that when the shipping bill was filed by the CHA and it has been accepted by the exporter, this fact itself shows that appellant has been duly authorized by the exporter for carrying out clearance work of exports consignments. As regard the violation of the regulation 13(d) and (n), we find that Ld. Commissioner held that there is violation under regulation 13(d), contending that appellant was given CHA work not directly by the exporter but through one shipping line, therefore appellant have never met to the exporter, accordingly appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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