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TMI Blog2022 (6) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... riod can be extended by another 30 days on filing an application to condone the delay. The delay in the present case is less than 30 days. Conduct of personal hearing - whether hearing was not conducted in a proper manner as both the parties were not present at the same time in the virtual hearing conducted by the Commissioner (Appeals)? - HELD THAT:- From the records, it is seen that department has filed a letter on 09.11.2020 informing that the grounds of appeal filed by the department may be taken on record as arguments for the department. In such case, it cannot be said that department has to appear in the online hearing. From the discussions made in the impugned order also, it is not seen that any new grounds were taken up by the department other than what they have stated in their grounds of appeal. The view taken by Commissioner (Appeal) that the matter has to be remanded for reconsideration does not require any interference - Appeal dismissed. - Customs Appeal No.40425/2021 - FINAL ORDER No. 40203 / 2022 - Dated:- 6-6-2022 - Ms. Sulekha Beevi C.S., Member (Judicial) Dr. Sunitha Sundar, Advocate For the Appellant Shri R. Rajaraman, AC (AR) For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put forward by the Ld. Counsel for appellant is that the appeal filed by Department before Commissioner (Appeals) is time-barred and that the Commissioner (Appeals) ought not to have entertained the appeal itself. She adverted to Section 129D (2) and (3) of the Customs Act, 1962 and argued that review order under sub-section (1) and (2) of Section 129D ought to have been passed within a period of 3 months from the date of order passed by the adjudicating authority. In the present case, the order of the adjudicating authority is dated 31.05.2019. The office of the Commissioner of Customs is very much in the same building and it cannot be believed that they have not received the order on the date of dispatch itself. It is contended by the department that they have received the order only on 17.06.2019 which is utterly false. She argued that the date of order being 31.05.2019, the review order ought to have been passed within a period of 3 months from the date of such order. Sub-Section (3) of Section 129D states that the review order has to be passed from the date of order of the adjudicating authority. Even though a delay of 30 days can be condoned by filing an application, in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the argument that the appeal filed by the department is barred by limitation, Ld. AR submitted that the order was received at the Review Cell only on 17.06.2019. When computed from such date, the review order dated 03.09.2019 is within time. The same has been taken note of by the Ld. Commissioner (Appeals) and held that the appeal has been filed within the prescribed time limit. 4.2 In reply to the argument that the hearing was not conducted in a proper manner, Ld. A.R adverted to the discussions made by Commissioner (Appeals) in para-5 and in page 18 of the impugned order. Shri Kailash Bunkar, Superintendent had appeared on behalf of the department on 03.12.2020. Further, the Department vide letter dated 09.11.2020 had informed that the grounds of appeal filed by the department may be taken on record and that the department does not wish to make any further submissions. The order has been passed after hearing and considering the contentions raised by both sides. 4.3 On merits of the case, Ld. A.R adverted to the observations in para-6 of the OIO where the statement of Shri K. Katturaja, who is Operation In-charge of the appellant-Customs Broker, is given in detail. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority : Provided that the Board may, on sufficient cause being shown, extend the said period by another thirty days. (emphasis supplied) Sub-section (3) provides that the review order has to be passed within a period of 3 months from the date of communication of decision or order of the adjudicating authority. On perusal of records, it is seen that the date of Order-in-Original is 31.05.2019. The date of dispatch is shown as 03.06.2019. The appellant contends that department would have received it on the same date and therefore the review order passed on 03.09.2019 is beyond 3 months. They have not adduced any evidence to show that the department has received the order passed by the Adjudicating Authority either on 31.05.2019 or on 03.06.2019. The department has submitted before the Commissioner (Appeals) that they have received the order only on 17.06.2019. This Bench, on 02.03.2022, directed the department to produce evidence as to the date on which they have received the order passed by the adjudicating authority. An affidavit was filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with them, they requested for KYC of the Shipper viz M/s. Polyhose India (Rubber) Pvt. Ltd.; that M/s.Mac-Nels handed them over an incomplete KYC format and ROC declaration of M/s.Polyhose India (Rubber) Pvt. Ltd; that M/s.Mac-Nels told them that they will obtain and give them the complete KYC in a short while; that they prepared and sent the check list for approval; that after approval, they (M/s.Behag) submitted the checklist online and got it numbered as Shipping Bill No.5386076 dated 06.06.2018; .. . To a query as to whether they verified the antecedents / identity of the client to whom they provided their services, he stated that they verified the antecedents in the ICEGATE Customs website; that they verified the antecedents/identity of the IE Code holder M/s Polyhose India (Rubber) Pvt. Ltd., by typing their IE code and PAN number in Google and found that they were regularly filing around 30 to 35 shipping bills per week; that but they did not verify the instant export order with M/s Polyhose India (Rubber ) Pvt. Ltd., directly .. 10. From the above statement, it is seen that the appellant has admitted that they have not verified the antecedents of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such obligation is to exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage and yet another obligation is to verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. 19. From the records and the own admission of the appellant, it is clear that the appellant had not discharged these obligations, which cast on him. It is a case where under the guise of Coco Peats, prohibited goods namely, Red Sanders weighing 10.760 MTs. has been transported. The DRI based on the intelligence gathered, had rescue the goods and found the Cargo was transported based on the Annexure A containing the signature of the appellant Customs House Agent. Customs House Agent is governed by the Regulations framed by the Government in exercise of the powers conferred under the Customs Act, 1962. Therefore, misdeclaration of goods and attempt to export such goods is punishable under Section 114 of the Customs Act. A Customs House Agen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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