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TMI Blog2023 (9) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... d was due to some system error or failure. There are no no merits in the impugned order an penalty imposed under Sub-Regulation 8 of Regulation 12 set aside, and it is found that the additional condition imposed by public notice of 2015, itself was procedural improvement under taken by the department through which requirement of referring to the ICEGATE was brought in - the employer cannot be punished for such facts of discretion or extra diligence than prescribed, on the part of employee specially when department did not find anything wrong, when compared to employees of other CFS. Penalty set aside - appeal allowed. - MR. SOMESH ARORA, MEMBER (JUDICIAL) AND MR. C.L MAHAR, MEMBER (TECHNICAL) Shri Vikas Mehta, Consultant appeared for the Appellant Shri Rajesh Nathan, Assistant Commissioner (AR) for the Respondent ORDER The present appeal has been preferred by the appellant, who has a CFS which has been declared as customs area under Section 8(b) of the Customs Act, 1962, and have been approved as a custodian of the said premises under Section 45 of the Customs Act, 1962, vide Customs Notification No. 9/2007- dated 25.04.2007. 1.1 On the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not exist in system or had not been filed. It was also learnt that no Bill of Entry was filed in respect of both the containers. 1.5 Further, detailed examination of goods for both the containers was conducted under Panchnama dated 18.09.2015. During the course of examination of goods it was noticed that the alleged bogus/ fake Bills of Entry No. 2564071 dated 11.09.2015 2569697 dated 12.09.2015 inscribed the name of M/s Season International Pvt. Ltd., Mumbai (IEC 0494026693) an M/s Intee Poly Pvt. Ltd., Mumbai (IEC 0409001851) as importers name, Custom Broker as M/s Briano Marine, PAN based CB (AETPR2783QCH001) respectively for import of goods as declared Baby Diapers . The Seal No. 012050 in Container No. 1ALU4561001 and Seal No. 012017 in Container IALU4562327 were found in intact condition as per the Seal No mentioned in respective Bill of Lading. The Seals of containers were then cut and goods were de-stuffed in the warehouse located at ICD, Sachin, Surat. During the examination of goods, it was found that cartons stacked in front rows were only containing Diapers, while the cartons stacked behind the front rows were noticed containing Cosmetics of reputed brands viz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the containers were seized under Section 110 of the Customs Act, 1962 under the reasonable belief that same are liable for confiscation under the provisions of Section 111 (e), (0, (i) of the Customs Act, 1962, vide seizure memo dated 21.09.2015. 1.8 As stated above, two Containers nos. IALU 4562327 IALU 4561001 having cosmetics items, were mis-declared as Baby diapers in IGM, were removed clandestinely from Ashutosh Container Services Private Limited (Ashutosh CFS) Mundra, by way of generating producing bogus Custom documents viz. Bills of Entry, Invoice, Packing list on 16.09.2015. The dealing staff of Ashutosh CFS has failed to follow the prescribed procedure as per Public Notice No. 24/2007 dated 31.05.2007 regulations of HCCAR, 2009. Resultantly, due to their careless attitude, the smugglers had cleared goods clandestinely. 1.9 While proceeding against various parties involved, it was noticed that the Custom Cargo Service Provider (Ashutosh CFS) had failed to fulfil/ comply the provisions of Regulation 6 of HCCAR, 2009 and accordingly appointment of Customs Service Provider of Ashutosh CFS was placed under suspension under Sub-regulation (2) of Regulation 12 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation conducted, evidences collected and statements of the accused persons recorded by the SIIB, it came to the notice that on the basis of such forged faked documents, clearances have happened from their CFS on 14 occasions earlier apart from aforesaid 02 clearances which resulting into huge loss of revenue to Government. The details of the bogus Bills of Entry and fraudulently cleared containers are given mentioned in the Show-Cause-Notice bearing F. No. S/43- 26/SIIB/INV/CHM/2015-16 dated 11.03.2016 which has already been served to the noticee. Therefore, it appeared that the staff of the CFS has failed to discharge their duties appropriately and their careless attitude resulted in continuous illegal activities carried out effortlessly by the gang of smugglers and therefore, it appears that Custodian have failed to fulfil/ comply the provisions of Regulation 6(1) of the HCCAR, 2009. 1.14 The Show Cause Notice F. No. S/43-26/SIIB/INV/CHM/2015-16 dated 11.03.2016 was issued to M/s Ashutosh Container Services Pvt Ltd., under Customs Act, 1962 which culminated into Order-In-Original No. MCH- CUSTM- 000-COM-15-17-18 dated 07.02.2018 issued under Customs Act, 1962 vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 of Customs Act, the employee issuing gate pass was also verifying the status of the bill of entry on ICEGATE website. From the investigation conducted, evidences collected and statements of the accused persons recorded by the SIIB, it was found that during the verification of document pertinent to the bills of entry under which clearance was taken, the employee of M/s Ashutosh CFS noticed the name of custom broker for the first time and he has some doubts on verification of the genuineness of the bill of entry through ICEGATE, it displayed No record Found , but he allowed the clearance as the document produced appeared to be genuine and many times ICEGATE show such type of error due to slow server. The reason given by the employee in allowing the exit of import cargo even after noticing on verification of genuineness of bill of entry from ICEGATE that NO RECORD FOUND is not at all convincing, as in a situation of slowness of server, sites display error but never display the wrong message as NO RECORD FOUND . Such a message will be displayed only if wrong bill of entry number is entered or bill of entry is not filed. Therefore, if he had noticed such message on the screen, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the documents were false/fabricated/or did not reveal the correct facts. The documents in question are Registration books for the subject cars, which have been said to be fabricated and not to depict the true position of the registration of the cars outside India in U.A.E. These documents (registration books etc.) are records of a Government Department of U.A.E. being maintained in a foreign country, only after detailed examination of the documents and enquiries conducted by the Indian authorities in U.A.E. the charges could be made. The present order impugned before us does not bring out any special and specific material or reasons as how the CHA was aware of the actual facts in U.A.E. documents and about the cars being not registered therein, on documents showing the dates of registration. The CHA has produced the documents which were given to him on behalf of the importers. The CHA, cannot be held responsible for the violations for such an act, under Regulation 21 of the CHALR, 1984. Regulation 21 of the CHALR- 84 reads as follows:- Suspension or revocation of licence:- 1. The Commissioner may, subject to the provisions of Regulation 23, suspend or revoke the licence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cargo in Customs area regulation 2009, which makes CFS licensee responsible for any lack of diligence on the part of employee, though he hastened to add that there was not even negligence on the part of the employee. Further he adds that all requirements of P.N of 2007 were being followed by them and requirement of referring to ICEGATE came into existence only in public notice 27/2015 after the incident. And that even in two other C.F.S, Shri Ritesh Devda, Executive of Mundra C.F.S in his statement dated 26.11.2015 and Shri Mukesh Sharma in statement dated 26.11.2015 for APSEZ C.F.S had similarly checked status from ICEGATE but such action on their part were not considered as lack of diligence. 3. Learned AR on the other hand places reliance upon findings in order-inoriginal and reiterates the findings. He emphasizes that the fact of 14 containers have passed out makes the omission serious and also the fact of having overlooking even when computer system flashed that record did not exist. In other cases, where actions has not been taken the concerned employees in one case each, number of such lapse were one time only. 4. Considered. In the instant case in 16 transactions 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainers, the premises located at Revenue Survey No.169/42 169 paiki, Village: Dhrub, Taluka Mundra Distt: Kachchh - 370 421developed by M/s. Ashutosh Container Services Pvt. Ltd. has been declared as the Container Freight Station and the 'Customs Area' under Section 8(b) of the Customs Act, 1962 (hereinafter referred to as the said CFS) and M/s. Ashutosh Container Services Pvt. Ltd. have been approved as the Custodian of the said premises under Section 45 of the Customs Act, 1962 (hereinafter referred to as the Custodian), vide Customs Notification No.09/2007,Dated- 25.04.2007. 1.2 The said CFS shall operate on all week days in two shifts between 9.00 Hrs. to 23.00 Hrs except on Sundays, Second Saturdays of every month and all Gazetted holidays. The Importers / Exporters or their agents can avail the services of the available staff on Merchant Overtime (MOT) basis on such holidays and off days and beyond the aforesaid prescribed Office Time, on account of any Imports / Exports of urgent nature, with the permission of the Deputy Commissioner/Assistant Commissioner of Customs in-charge of the said CFS. 1.3 The facility for movement of the containers between the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stuffing sheet which will be signed by him along with the Customs Officer, Importer/CHA and representative of the shipping lines in respect of LCL cargo. This sheet shall mention that the seal was found intact and also regarding the contents in the containers viz packages, chests, pellets, boxes etc. shall be tallied and the numbers compared with reference to the IGM/OBL. Shortage/excess, if any, noticed at the time of de-stuffing, shall be recorded and got certified by the Customs Officer on the de-stuffing sheet 2.5.2 The clearance of goods for home consumption/warehousing from the said CFS-shall be on the basis of the Bill of Entry in the prescribed form to be filled by the Importers/their authorized agents before the Customs Authorities at the said CFS Each Bill of Entry shall be noted against the copy of the IGM. The Bill of Entry as filled shall be accompanied by all necessary documents including invoice, packing list, bill of lading, import license, declaration under Rule 10 of the Customs Valuation Rules, 1988, OGL Declaration, chartered engineer's certificate (wherever applicable) etc. One separate set of essential documents like invoice, packing list, bill of lad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then present the Bill of Entry to the Appraiser/Superintendent of Customs for assessment. 4.3 After assessment of the Bill of Entry by the Appraiser / Superintendent, the Importer/CHA shall present the Bill of Entry to the Inspector of Customs to check the exchange rate. After this, the Bill of Entry shall be put up to the Dy Commissioner/Asst. Commissioner of Customs, who is in charge of the CFS for his signature. 4.4 Detachment of Bill of Entry. The detach clerk having received the finalized Bill of Entry will hand it over to the Importer/CHA for payment of duty. However, before handing over the Bill of Entry, he will ensure to put his signature in the Bill of Entry Monitoring Register. He will also ensure that the original Bond/Bank guarantee and note sheet etc. if any, are detached and kept in the official records of the department. Any formality regarding licensing etc., if required, will also be completed before handing over of the Bill of Entry to the importer/CHA. 4.5 Duty payment. The importer/CHA, after receiving the Bill of Entry from the detach clerk, shall pay the duty in the designated bank after getting TR-6 challan signed by the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easing companies, shippers/steamer agents will be responsible for producing proof of export of containers at the gateway port or the cancellation of the bonds executed in respect of empty containers. As per the requirement of the Shipping Lines, the empty containers will be transported from the CFS to gate way ports or other CFS/ICD under EIR. 7. Closure of IGM. After all the goods received and delivered at the said CFS under an IGM/ Sub- manifest IGM, are lawfully cleared, the IGM will be closed on the basis of duplicate copy of the Bill of Entry. 8. Uncleared Goods. Attention of importer/CHA and others concerned is invited to, the provisions of the Section 48 of the Customs Act, 1982. The Custodian will bring it to the notice of the Asstt./Dy. Commissioner of Customs Bhuj, in charge of the CFS, all such consignments that are not cleared by the Importer/CHA for home consumption/warehousing within 30 days from the date of unloading thereof or within any extended period. In respect of such goods and also goods in respect of which, the importer relinquishes title before an order for clearance under the Customs Act, the Custodian shall, after giving due n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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