9911796707
TMI Blog2024 (6) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... rix of the case also clearly provide that the appellant acting as the freight forwarder, undertook the task of collecting/ receiving various import documents, act of preparing the checklist for filing the bill of entry, and as their entity not being a CHA/customs broker, had forwarded such documents to the CHA/CB M/s P.N. Shipping Agency, for filing the bill of entry to enable clearance of such smuggled goods. Further, no proper verification of the importer, existence of the importer, the authenticity of authorisation to handle such documents received from unknown or unconnected person having no authority, was done by the appellant - in terms of legal provisions under Section 112(a) ibid, this case fits in the four corners of the situations mentioned in such provision where the proper authority could impose penalty. Further, the value of smuggled foreign origin cigarettes at Rs.3,32,62,160/- which were attempted to be cleared by various persons involved in the offence including the appellant is very high and significant. Thus, it is found that the above acts done by the appellant clearly prove that it is a planned action on their part to conceal the smuggled foreign origin cigarett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative for the Respondent ORDER PER : M. M. PARTHIBAN This appeal has been filed by Shri Mukhtar Shaikh, Proprietor of M/s Fast Forward Logistics, Mumbai (herein after referred to as the appellant , for short), assailing the Orders-in-Appeal No. 220{Adjn(I)2018(JNCH)/ Appeal-II dated 26.02.2018 (referred to as the impugned order ) passed by Commissioner of Customs (Appeal), Mumbai-II, JNCH, Nhava Sheva. 2.1 The brief facts of the case are that the appellant is a proprietor of M/s Fast Forward Logistics, Mumbai who is providing logistics support service in clearing and forwarding of imported goods as well as export goods. The appellant has been interacting with various Custom House Agents (CHAs)/ Customs Brokers (CBs) in order to get the consignments cleared for import or export on behalf of their various clients. The appellant was following a practice of receiving various documents from his clients and then sending such documents to the CHA/CB in order to get the consignments cleared out of customs control. Similarly, in the present case of import of trolley bags by M/s Ganesh Enterprises, Dombivali (East), Mumbai vide Bill of Entry No. 9159911 dated 07.05.2015, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of assailing the impugned order only for imposition of penalty on the appellant and not in respect of confiscation of smuggled goods and imposition of penalty on various persons concerned with such illegal acts. 3. Learned Advocate appearing for the appellant had stated that the appellant being service provider of logistics support in clearing the imported goods had provided the services in good faith; there was no occasion for the appellant to suspect the import transaction, as all the requisite documents including KYC documents were duly verified by them before submitting to CHA/CB and they did not derive benefit from importer. He further stated that they did not do any positive act, or indulge in omission or commission of act which could be a ground for imposition of penalty, and imposing penalty only on the basis of statements recorded under Section 108 of Customs Act, 1962 does not sustain the order imposing penalty on the appellant. Hence, they pleaded that their appeal be allowed. 4. On the other hand, learned Authorized Representative (AR) pointed out that the appellant received the import documents from a third person viz. Shri Kanaiya Hurbada, who is neither the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition of penalty on the appellant as co-noticee under Section 112(a) ibid. 7. On perusal of the original order dated 15.05.2017, in the above context, it is seen that the findings in the adjudication order which was confirmed in the impugned order are as follows: 32. In view of the above, I find that A) B) After detailed investigation by DRI and statements of various persons in connection with the case it emerged that a criminal conspiracy was hatched by some unknown/unidentified persons to smuggle cigarettes. The investigation has concluded that:- The CHA was arranged through Shri Kanaiya Hurbada by Shri Dinesh Banushali and Shri Rajan Bhanushali who were fronting for the unknown/identified person. The CHA s role was restricted to merely filing the Bill of Entry and not with the clearance work of assessment and examination which was to be carried out by the Shri Kanaiya Hurbada so as to ensure smooth clearance of the subject contraband. The CHA was arranged by Shri Kanaiya through Shri Mukthar Shaikh of M/s Fast Forwards Logistics. The delivery order was to be obtained by Shri Mukthar Shaikh as per Shri Kanaiya Hurbada s instructions in the manner which would not leave any tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to confiscation under section 111, or abets the doing or omission of such an act, or (b) who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable, (i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty 17[not exceeding the value of the goods or five thousand rupees], whichever is the greater; (ii) in the case of dutiable goods, other than prohibited goods, subject to the provisions of section 114A, to a penalty not exceeding ten per cent of the duty sought to be evaded or five thousand rupees, whichever is higher: Provided that where such duty as determined under sub-section (8) of section 28 and the interest payable thereon under section 28AA is paid within thirty days from the date of communication of the order of the proper officer determining such duty, the amount of penalty liable to be paid by such person under this section shall be twenty-five per c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing/ receiving various import documents, act of preparing the checklist for filing the bill of entry, and as their entity not being a CHA/customs broker, had forwarded such documents to the CHA/CB M/s P.N. Shipping Agency, for filing the bill of entry to enable clearance of such smuggled goods. Further, no proper verification of the importer, existence of the importer, the authenticity of authorisation to handle such documents received from unknown or unconnected person having no authority, was done by the appellant. Furthermore, investigation also brought up the various documents, letter heads, authorisation seals of importer, were covered from the appellant s premises which clearly indicated that the appellant was playing an active role in clearing the contraband by using IEC of importer in an illegal manner. Thus, in terms of legal provisions under Section 112(a) ibid, this case fits in the four corners of the situations mentioned in such provision where the proper authority could impose penalty. Further, the value of smuggled foreign origin cigarettes at Rs.3,32,62,160/- which were attempted to be cleared by various persons involved in the offence including the appellant is ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of adjudication of the appellant s case and at the first appeal stage, therefore the impugned order fulfils the requirement of adhering the principles of natural justice in arriving at a decision and passing a speaking order on the disputed issue. 12.1 I further find that in a similar case of smuggling of foreign origin cigarettes in Ashok T. Sadarangani Vs. Commissioner of Customs (Prev.) (2024) 17 Centax 178 (Tri.-Bom.), the Tribunal had passed an order upholding the imposition of penalty under Section 112(a) of the Customs Act, 1962. The relevant paragraphs of the said order are as follows: 5. I am constrained to note that the sufficient opportunities had been given to the appellant, and more specifically on 10-5-2022, 15-3-2023, 27- 7-2023 and 18-12-2023 for the appellant to be present and plead his case. Even today, none had appeared for the appellant. Thus, it is very clear that the appellant is not interested in pursuing the legal remedy despite he being aware of the proceedings before the Tribunal as they had appeared earlier on two occasions before the Tribunal. Hence, I take up the case on merits of the case and with the consent provided by the learned AR for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike the one in the present case before me, imposition of penalty under Section 112(a) ibid is clearly warranted. The relevant paragraphs in the said judgement of the Hon ble Supreme Court is extracted and given below: 44. In view of the aforesaid, it was concluded by the Commissioner that in respect of the imported goods the aforesaid three persons have done or omitted to do acts which acts or omissions have rendered such goods liable for confiscation and they had also abetted in acts which they knew or had reasons to believe that the goods are liable to confiscation under Section 112(i) of the Act and rendered themselves liable to action under Section 112(a) of the Act. Accordingly penalties as noted above were levied on respondents 2, 3 and 4. 47. The manipulative roles of respondents 2 to 7 have been clearly established. They were clearly active participants in the well-planned deception and fraudulent acts leading to evasion of duty. They had played major roles in the whole game of fraud and deception. There was clearly wilful disregard and deliberate defiance of statutory provisions. Levy of penalty is clearly warranted. Impugned order of CEGAT is set aside and order of Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
