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TMI Blog2018 (6) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... nsible for undervaluation in the peculiar fats of the case. The adjudicating authority himself is not sure about the involvement of the appellant in the modus operandi of the importer - the entire finding is based on assumption and presumptions and on that basis the appellant cannot be punished. Penalty set aside - appeal allowed - decided in favor of appellant. - C/86850/2017 - A/86612/2018 - Dated:- 23-4-2018 - Shri Ramesh Nair, Member (Judicial) Shri Prashant Patankar, Consultant for appellant Shri Manoj Kumar, Assistant Commissioner (AR) for respondent ORDER The present appeal is directed against Order-in-Original No: 180/2016-17/CC/NS-I/JNCH dated 02/03/2017 passed by the Commissioner of Customs (NS-I), Nha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises by the actual user is not an offence per se. This act, alone cannot be a basis for allegation of involvement in the case of undervaluation. He place reliance on the following judgment: i. Hamid Fahim Ansari v. Commissioner of Customs (Import), Nhava Sheva 2009 (241) ELT 168 (Bom.) ii. Atul D Sonpal v. Commissioner of Customs (ACC Import), Mumbai 2012 (275) ELT 248 (Tri.Mumbai) iii. IS Corporation v. Commissioner 2016 (339) ELT A125 (Tri.Mumbai) 4. He further submits that the appellant owned CHA firm M/s Kismat Clearing Agency filed the bill of entry on the basis of documents produced to them and from the documents it cannot be made out whether the goods have been undervalued or otherwise. Therefore, when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C of M/s Rudraksh Enterprises. Since CHA filed the bill of entry on the basis of documents produced to him by the importer and in such documents no discrepancy was pointed out, the undervaluation of the imported goods was determined only on the basis of independent investigation carried out by the customs authorities. Even though the insurance documents were relied upon but the enhancement of the value was made on the basis of contemporaneous imports. In these facts it cannot be expected from the CHA to know about the fact whether any undervaluation was done by the importer. Therefore, he cannot be made responsible for undervaluation in the peculiar fats of the case. I have gone through the paragraph No. 18.4.3 of the impugned order which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to these insurance documents at the time of filing the Bills of Entry by both the importer and his Customs broker. Hence, this indicates that Shri Lalit Agarwal would have been aware of the modus operandi of the importer Shri Vishal Rohra as he used to file the Bills of Entry on behalf of the importer Shri Vishal Rohra. There does not appear to be any bonafide motive by the Customs Broker to ignore this aspect or suppress this information to Customs at the time of filing the Bills of Entry. Hence I find that the contention that although the other noticees Shri Hitesh Ajmera and Shri Vishal Rohira made no allegations against Shri Lalit Aggarwal regarding valuation of the goods at the time of filing of Bills Of Entry as the Customs Broker did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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