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TMI Blog2024 (9) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... such eight export consignments under eight different invoices in one single S/B instead of eight S/B, resulting in artificial splitting single export consignment, for avoiding examination of the goods by the customs officers and in exploitation of the simplified procedure of assessment / examination of export consignments. It is a fact on record, that the exporter himself had prepared eight different invoices and asked the appellant to prepare the export documents accordingly. Further, there is no evidence on record to suggest that the appellant had prepared eight different S/Bs on his own; even if this was done to avoid examination by the Customs officers, all such S/Bs were filed on the same day, simultaneously as the S/B Numbers reveal that they are almost in same serial order. Thus, it does not stand to logic that the appellant had purposefully split the consignments to avoid examination and to facilitate availment of simplified procedure. For the alleged non-compliance of procedure in filing S/Bs, the right course of option open for the customs authorities is to take action under Customs House Agents Licensing Regulations, 2004/Customs Brokers Licensing Regulations, 2018 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by the Customs officers of Export Shed, Air Cargo Complex (ACC), Mumbai pursuant to the examination order to examine package No. 01 02 as per Customs EDI System/Risk Management System. On such examination, it was found that such export goods were mis-declared with respect to its value. It was further found that goods covered under each of the eight S/Bs Nos.viz., 5684479, 5684483, 5684484, 5684485, 5684486, 5684489, 5684490 and 5684491, all dated 01.10.2011 were filed for 3240 pieces of Wallets for Gents each and the declared value was Rs.9,66,680.18/- for each of the consignment covered by individual S/B and all these consignments were destined to same buyer abroad at Dubai. All these export consignments were examined by the Customs officers at Export Shed of the ACC under panchanama proceedings held on 15.11.2011 and the goods were seized for further action. The exporter in all these consignments covered under Eight Bills of Entry for export is one M/s Aijaz Esmail Pawaskar, and the appellant s firm has acted as Customs Broker (C/B) in transacting business with customs authorities. 2.2 Further investigation in the form of market enquiry was conducted by the Customs offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va- 2008 (230) E.L.T. 486 (Tri.-Mum.) (iii) P.D. Prasad Sons Pvt. Ltd. Vs. Commissioner of Customs (Export), New Delhi 2017 (358) E.L.T.1004(Tri.-Del.) (iv) Akanksha Enterprises Vs. Commissioner of Customs, Mumbai 2006 (203) E.L.T. 125 (Tri.-Del.) 4. Learned Authorised Representative (AR) reiterated the findings made by the Commissioner of Customs (Appeals) in the impugned order. He further submitted that the argument placed by the appellant s side that they had acted in good faith, does not result from their employee action of blind faith. He stated that the concept of good faith is understood as, Nothing is said to be performed or believed in good faith which is done or believed without due care and interest . He further stated that in the present case, there isno evidence adduced by the appellant to establish that his belief had a rational foundation. Since, the appellant was a Licensed Customs Broker, he was required to exercise due care and attention in filing the S/Bs and the obvious mistakes like the ones in the present case, does not support their claim of action in good faith. Further, in support of their case, he relied upon the judgement of the Hon ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter himself had prepared eight separate consignments for export, leading to the appellant requiring eight shipping bills to be filed in the present case, as per the directions of the exporter. 6.5 Since the Customs EDI facility under ICES provide for filing multiple commercial invoices under single S/B, the department had alleged that the appellant had failed to file such eight export consignments under eight different invoices in one single S/B instead of eight S/B, resulting in artificial splitting single export consignment, for avoiding examination of the goods by the customs officers and in exploitation of the simplified procedure of assessment / examination of export consignments. It is a fact on record, that the exporter himself had prepared eight different invoices and asked the appellant to prepare the export documents accordingly. Further, there is no evidence on record to suggest that the appellant had prepared eight different S/Bs on his own; even if this was done to avoid examination by the Customs officers, all such S/Bs were filed on the same day, simultaneously as the S/B Numbers reveal that they are almost in same serial order. Thus, it does not stand to logic that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not found, a similar product was purchased for a sum of Rs.15/- from M/s Ramachandra store, Shop No.55, Indira Sewa Market, Kings Circle, Mumbai-37. The purchase receipt along with the similar product (Gents Wallets) has been place in the file. Sd.(on 17.01.2012) Ganesh Dalvi CHA Representative Sd.(on 17.01.2012) Praveen K Sinha PO/Export Shed Sd.(on 17.01.2012) Narinder Kumar Supdt./Export Shed Plain reading of the above market survey report indicates that the allegation of overvaluation of export goods, on the above basis, is neither supported by any proper evidence or on a legal basis as is required under the Customs Valuation (Determination of Value of Export Goods) Rules, 2007. Since, in terms of Rule 3 ibid, transaction value shall be accepted even where the buyer and seller are related, provided that the relationship has not influenced the price; and that if the value cannot be determined under the provisions of sub-rule (1) and sub-rule (2) of Rule 3 ibid, then the value shall be determined by proceeding sequentially through rules 4 to 6 ibid the aforesaid method of ascertaining the value of export goods by such a non-scientific, rudimentary market survey is devoid of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the penalty can be imposed only if there is mis-declaration of value and description of the goods that are sought to be exported. In this case the appellant is only a CHA and he is not required to make any declaration of the value nor is he required, under the law to file description of goods. His role is limited to facilitate the proper filing of the documents as received from the exporter. He is not required to go in to the authenticity of the value of the goods etc. His job is confined to the submissions of the papers as given by the exporter and to identify the exporter to the authorities which he did so when the goods were examined by the authorities. The Exporter was physically present when the authorities examined the goods. To my mind, in this case the CHA has acted in a responsible way by producing the exporter who had filed the documents for export of goods. No motive could be attributed to the appellants in this for imposition of penalty under Section 114 of the Customs Act, 1962, as there are no specific allegations as to the commission and omissions of the appellant with knowledge. 5 . The Tribunal in the case of Vetri Impex v. CC, Tuticorin as reported at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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