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TMI Blog2022 (1) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods and value thereof - As in the present case the facts which is not under dispute that right from manufacturing and valuation of the goods, it is a modus operandi planned by proprietor Smt. Bharti Gandhi and son Shri Amish Gandhi and they issued the invoice for the goods in question therefore, the appellant being employee of the company had no reason to dispute or question the value mentioned in the invoice as that is not his subject matter. He was only authorised to sign and file the Shipping Bill which is not to be prepared only on the basis of invoice. It is also to be noted that even the appellant had no knowledge to prepare Shipping Bill which was admittedly prepared by CHA, he simply put his signature therefore, the only offence which exist is the over valuation of the goods which is not creation of the appellant but it was done by his employer firm through Smt. Bharti Gandhi and her son Shri Amish Gandhi. Allegation that the appellant was aware that the value of the goods is not more than ₹ 10,000/- - HELD THAT:- This version of the appellant came only after the investigation has started. Even as per the standard of the appellant and his education level, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng bill as well as replied to the query and signed as FOR MAZDA GLOBAL ) appeared to have supplied the copy of the bond with the request to assess the shipping bill. 1.1 The factory premises of M/s. MAZDA GLOBAL were searched on 31.3.07 by the Officers of SIIB section of Customs House, Kandla. One person who introduced himself as Shri Shashikant J Parmar, production in-charge and authorized signatory of the firm was present at the material time. During the search operations Shri Shashikant J Parmar identified the goods (for which the subject shipping bill was filed) which were in the factory. The said goods namely 20 pieces of cap shaped items apparently look like made of some kind of plastic were found kept in carton/box. No electrical, mechanical or electronic device was found attached with the goods. It was also noticed that no machinery, plant were installed in the factory and no tools, furniture, labourers, etc. were found installed/fixed/lying in the factory. The electricity connection of the shed was also found disconnected and there was no electricity/inverter/generator set found in the factory premises. In the presence of the independent panchas, the photography/videog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment, Near Judges Bunglow Police Station, Ahmedabad under Section 114(iii) of the Customs Act, 1962 read with the Instruction No.6/2006 dated 3-8-2006 of the Ministry of Commerce Industry, Department of Commerce (SEZ Section). (v) I impose penalty of ₹ 1,00,00,000/- (Rupees One Crore Only) on Shri. Shashikant J Parmar, Production-in-charge of M/s. Mazda Global, 214/2566,. Pratiksha Apartment, Sola Road, Naranpura, Ahmedabad, under Section 114(iii) of the Customs Act, 1962 read with the Instruction No.6/2006 dated 3-8-2006 of the Ministry of Commerce Industry, Department of Commerce (SEZ Section). (vi) I impose penalty of ₹ 1,25,00,000 (Rupees One Crore Twenty Five Lakhs Only) on Smt. Bharti J. Gandhi, Proprietor of M/s Mazda Global, A-82, Hariom Apartments, Near Law Garden, Panchvati Road, Ahmedabad under Section 114(iii) of the Customs Act, 1962 read with the Instruction No.6/2006 dated 3 8-2006 of the Ministry of Commerce Industry, Department of Commerce (SEZ Section). Being aggrieved by the aforesaid Order-In-Original, the present appellant Shri Shashikant J Parmar, employee of M/S. MAZDA GLOBAL filed an appeal before the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. MAZDA GLOBAL informing him that they have to file the Shipping Bill today and he further informed the appellant that since both the Authorised Signatory namely Proprietor Smt. Bharti J Gandhi Manager Shri Amish Gandhi are at Ahmedabad and the shipping bill has to be filed urgently at KASEZ Gandhidham, therefore, the proprietor of M/s. MAZDA GLOBAL Smt. Bharti J Gandhi is authorising the appellant to sign on behalf of M/s.MAZDA GLOBAL for the export under invoice no.001/die/grp dated 30.3.2007, the said letter authorising the appellant on behalf of the M/s. MAZDA GLOBAL to sign on behalf of the company for the export under the invoice no.001/die/grp dated 30.3.2007, duly signed by proprietor Smt. Bharti J Gandhi was received by him on Fax No.95-2836-253731 at 8.08 p.m. on 30.3.2007 at STD PCO near KASEZ which he collected after going the said place where the said fax machine was installed; that the appellant also collected the export invoice No.001/die/grp dated 30.03.2007 duly signed by the proprietor Smt. Bharti J Gandhi and sent by Shri Amish J Gandhi, Manager of M/s. MAZDA GLOBAL on email of M/s.VALCONO CYBER NATION, AVISHKAR BUILDING, PLOT NO. 204, shop no.5 Opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared was ₹ 1,25,09,319/-. He submits that the appellant has clearly stated in his statement dated 31.3.2007 that he had sought guidance regarding the value of the goods through Manager Shri Amish Gandhi and on his advise the value was indicated in the Shipping Bill as ₹ 1,25,09,319/- more so as the same value was indicated in the export invoice duly signed by the proprietor of M/s. MAZDA GLOBAL Smt. Bharti Gandhi on 30.03.2007 that he had no option to declare any other value as his Manager Shri Amish Gandhi has advised him to declare the said value as ₹ 1,25,09,319/- and same value was declared by the proprietor in the duly signed invoice already received by him on email. 2.3 Similarly, as regard the copy of Form-H (Bond) the details were obtained by the appellant through Manager Shri Amish Gandhi and accordingly, the copy of the bond was submitted to the Appraising Officer KASEZ, he submits that all the act of the appellant is on the instruction of their employer Shri Amish Gandhi of M/s. MAZDA GLOBAL therefore, it cannot be said that he was aware of the facts of over valuation of the goods as such the appellant has not committed any offence/breach of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V/s. COMMISSIONER OF CUS., BANGALORE- 2006 (200) ELT 593 (Tri.-Bang.) affirmed by Hon ble Supreme Court 2009 (235) ELT 201 (SC) ASSOCIATED PLASTICS AND RAYONS Vs. COMMR. OF C. EX., CUSTOMS, VAPI- 2007 (210) ELT 524 (Tri.-Ahmd.) CCE Vs. AMINCHANDRA KANT BHALLABHAI- 2010 (258) ELT 36 (Guj.) M/S. GLOBAL CAMBAY MARINE SERVICES PVT. LTD. Final Order No.A/11662-11665/2018 dated 07.08.2018. 2.6 He further submits that there is substantial delay in adjudication of Show Cause Notice. He submits that though under the Customs Act, 1962 no time limit for adjudication of a case has been prescribed but that does not mean that unlimited time period is available for adjudicating the case. He placed reliance on the Hon ble Supreme Court Judgment in the case of M/S. BHATINDA DISTRICT CO.OP. MILK P. UNION LTD.- 2007 (217) ELT 325. He further submits that since under the Customs Act, 1962 the maximum period of limitation is 5 years. The said view was taken in the following cases of the Hon ble Supreme Court and that of Jurisdictional High Court of Gujarat wherein, the Show Cause Notices were quashed where there was delay in adjudication without any rhyme or reason. M/S. CITEDAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor Smt. Bharti Gandhi. The appellant being a less graduated person cannot be made to know the technicalities of the product as well as the value of the goods as regard the decision about the nature of the goods and value thereof. Whereas, the core business decision which is to be taken by the promoter of the company. In the present case, undisputedly the value was decided and for which an invoice was issued by M/s. MAZDA GLOBAL under signature of Smt. Bharti Gandhi proprietor of the firm. The appellant has only copied the same details in the shipping bill therefore, as regard charge of overvaluation, the appellant cannot be made responsible as the entire fraud was committed by the employer of the appellant M/s. MAZDA GLOBAL through its proprietor Smt. Bharti Gandhi and her son Shri Amish Gandhi. Merely because the appellant has filed the Shipping Bill duly signed by him, he cannot be made party to the fraud committed by Smt. Bharti Gandhi and Shri Amish Gandhi. It has also not established by the revenue that overvaluing the goods for export, the appellant was proportionately beneficiary out of the benefit to be derived from such fraudulent export, this is also a reason tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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