9911796707
TMI Blog2022 (9) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... eem by payment of Fine of Rs. 2.00 Lakhs and Rs.20.00 Lakhs respectively for the goods and Rs.25,000/- for vehicle No.WB-23 X 1615 and Rs.50,000/- for vehicle No.WB-23-4778. Also Penalty of Rs. 5 lakhs has been imposed upon the exporter Shri Raj Kumar Shaw, Proprietor of M/s Sundary Fashion under Section 114(iii) of the Customs Act, 1962 and Penalty of Rs. 5 lakhs each has been imposed upon Shri Prakash Ghosh, Proprietor of M/s Overseas Shipping Agency and M/s United Customs House Agency (P) Ltd. under Section 114(iii) and 114 AA of the Customs Act, 1962. No appeal has been filed by any of the owners of the carrier vehicles. Since all the three appeals are against the common Order-in-Original arising out of same cause of action, they are taken up together for hearing and disposal. 2. Briefly stated the facts of the case are that on the basis of specific Intelligence that some exporters were attempting to smuggle synthetic fabric materials to Bangladesh through Petrapole LCS, without declaring the same by tagging some illegal consignments with genuine export of similar goods in smaller quantity under cover of licit Shipping Bill, the Officers of Directorate of Revenue Intelligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 X 1615 and covered under Invoice No. SF/28/10-11 dated 02.8.2010. The buyer was M/s Hera International, Bangladesh and the term of payment was under Letter of Credit and/or Delivery against Payment (DP). As payment against the consignment covered under Invoice No. SF/29/10-11 dated 02.8.2010 was not yet cleared, preparation and presentation of Bill of export against the same was kept on hold. The payment against Invoice No. SF/28/10-11 dated 02.8.2010 was covered by Letter of Credit, so Bill of Export for this being No. 16413/EXP/PTPL/DEPB/2010 dated 03.08.2010 was processed by the CHA. Regarding recovery of unauthenticated copy of the Invoice bearing No. SF/28/10-11 dated 02.8.2010 with different quantity, he expressed his ignorance and during examination by the investigating Officer he stated that the invoice might have been made for submission before the Bangladesh Customs for less import duty. He stated that the said Invoice did not bear the handwriting or signature of any of his employees or his own. 4. Shri Prakash Ghosh, proprietor of M/s Overseas Shipping Agency, the Carrying & Forwarding Agent, during examination by the investigation stated that in terms of a written c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods under Sections 113(f), 113 (g) & 113 (h)(i) of the Customs Act, 1962, he submitted that as an exporter he is not supposed to know how are the vehicles parked in Central Warehousing Corporation (CWC) and what is the procedure for examination and clearance for export of the consignment. However, to the best of his knowledge, there was no procedural violation in parking and placing the cargo in CWC. 8. Shri Prakash Ghosh, in his reply to the Show Cause Notice submitted that he was a forwarding agent. Regarding alleged violation of the provisions of Sections 33, 34, 40(a) & 50(1) of the Customs Act, 1962, he submitted that parking of the vehicles in CWC was in consonance of the procedure laid down vide Public Notice No. 08/Cus/WB/2003 dated 11.7.2003 issued by the jurisdictional Commissioner of Customs. It was also confirmed by the manager CWC vide his letter dated 12.8.2010 and by the Assistant Commissioner of Customs, Petrapole L.C.S. vide his letter C. No. II (26)306/PTPLRd/ MISC/Cargo/09 dated 12.8.2010 addressed to the Senior Intelligence Officer. Agitating against allegation that he was acting as a de facto CHA, he submitted that engagement of Shri Ratan Biswas at Petrapole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial penalty upon the exporter under Section 114(iii); and upon the CHA and the C&F agent under sections 114(iii) &114AA was proposed in the SCN. Thus, the reasonable belief leading to the seizure of goods was not corroborated by the investigation. The entire proceeding, therefore, is vitiated legally. 11.1 Ld. Advocate further submitted that contravention of sections 33, 34, 40(a) and 50 of the Customs Act, 1962 was alleged in the SCN and confiscation and imposition of consequential fine and penalty was proposed accordingly. Section 33 states thatunloading and loading of goods at approved places only; Section 34 states that goods not to be unloaded or loaded except under supervision of Customs Officer;Section 40 states thatexport goods not to be loaded unless duly passed by proper officer- and Section 50 envisages filing of Bill of export for goods to be exported. He pointed out the findings of the Ld. Adjudicating Authority that generally export goods are brought to the CWC parking for examination with all documents including assessed Shipping Bills prior to export out of India. It is thus an admitted position that export goods are subjected to examination vis-à-vis Docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port promotion schemes." "The Committee observes that owing to the increased instances of willful fraudulent usage of export promotion schemes, the provision for levying of penalty upto five times the value of goods has been proposed. The proposal appears to be in the right direction as the offences involve criminal intent which cannot be treated at par with other instances of evasion of duty. The Committee, however, advise the Government to monitor the implementation of the provision with due diligence and care so as to ensure that it does not result in undue harassment." 13. Concluding his argument, Ld. Counsel for the Appellants prayed for setting aside the impugned Order of confiscation of goods and imposition of penalties upon the Appellants with consequential relief. 14. Shri M.P.Toppo, Learned Authorized Representative for the Revenue reiterates the findings in the impugned order. 15. Heard both sides and perused the appeal records. 16. The proceeding was initiated by DRI with detention of certain consignments in Central warehousing Corporation at Petrapole including the two vehicles loaded with export consignment of the appellant exporter on 04.8.2010. On the same day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place approved under clause (a) of section 8 for the unloading or loading of such goods. Section 34. Goods not to be unloaded or loaded except under supervision of customs officer. - Imported goods shall not be unloaded from, and export goods shall not be loaded on, any conveyance except under the supervision of the proper officer: Provided that the Board may, by notification in the Official Gazette, give general permission and the proper officer may in any particular case give special permission, for any goods or class of goods to be unloaded or loaded without the supervision of the proper officer. Section 40. Export goods not to be loaded unless duly passed by proper officer. - The person-in-charge of a conveyance shall not permit the loading at a customs station- (a) of export goods, other than baggage and mail bags, unless a shipping bill or bill of export or a bill of transhipment, as the case may be, duly passed by the proper officer, has been handed over to him by the exporter; Section 50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting electronically on the customs automated system to the proper officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs. It is not disputed that trucks loaded with goods were parked in CWC parking which is notified as custodian of Import and export goods and that those were recorded in their books and that clearance for export could be allowed after examination and under physical supervision of the Customs Officer right from the CWC parking to Physical border, gives no space for doubt that it could be smuggled. The proceeding is based on the allegation that the goods loaded in WB23 4778would have been exported under cover of another vehicle in respect of that the bill of export was assessed by the Customs Officer. 21. I agree with the submission that the said trucks parked in CWC cannot be treated as foreign going vehicle until Bill of export is submitted and examination of the cargo is physically done by the customs. It has been disclosed by the authorities of CWC and Customs that the vehicle becomes foreign bound only after appraisement of Bill of Export and examination of goods which was pending. Other findings on procurement of documents produced by the exporter and inspection by SGS are not relevant as overvaluation and consequential gain is not alleged. In consideration of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edients of Section 114AA of the Act are not applicable to the CHA/ C & F Agent and is meant against the fraudulent exporter as is made out from 27th Report of the Standing Committee on Finance (cited supra). I also find that in the present case, the Department has failed to prove that there was a mala fide and willful mis-representation by the Customs Broker. It seems that the Commissioner has totally misunderstood the facts and has wrongly observed that the appellants Customs Broker and the C & F have been operating from the same premises which leads one to suspect the bona fides of the appellants. This finding of the Commissioner is factually incorrect and without any basis. Further, the Commissioner on the basis of these facts has wrongly come to the conclusion that the C & F Agent is involved in the illegal export whereas he is only a Carrying and Forwarding Agent and has been facilitating transporting, loading and unloading on the basis of the documents furnished by the exporter. The allegation against the C & F Agent has not been corroborated through any financial investigation and one cannot be punished on the basis of assumptions and presumptions. 24. In view of the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
