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2021 (8) TMI 640 - AT - CustomsLevy of penalty on Customs Broker - Section 114AA of the Customs Act, 1962 - wrongful duty drawback claim - case is that no evidence of the mobile phones having been manufactured in India so as to claim duty drawback in terms of Section 75 of Customs Act - HELD THAT:- The appellant who is the Customs Broker has only filed the shipping bills pertaining to the exports made by the ADPL Customs Intelligence Unit conducted the investigation and prima facie found that the mobile phones exported were not manufactured in India and have been manufactured in China and the exporter ADPL was not entitled to drawback under Section 75 of the Act. A SCN was issued demanding drawback of ₹ 1,20,02,815/- along with interest but after following the due process, the Additional Commissioner only confirmed the demand of drawback to the tune of ₹ 50,48,749/- as per Rule 16 of Customs, Central Excise & Service Tax Drawback Rules, 1995. Further, the rejection of this amount is under challenge before the Revisionary Authority. In the present case, the Department has failed to prove that there was a mala fide and wilful mis- representation by the Customs Broker. It seems that the Commissioner (Appeals) has totally misunderstood the facts and has wrongly observed that the appellant (Customs Broker) and the exporter have been operating from the same premises and have an identical ICE Code which leads one to suspect the bona fides of the appellant. This finding of the Commissioner is factually incorrect and without any basis - the Commissioner on the basis of these facts has wrongly come to the conclusion that the appellant is involved in the illegal export whereas the appellant is only a Customs Broker who has filed the shipping bills on the basis of the documents furnished by the exporter. The imposition of penalty itself is not sustainable in law - Appeal allowed - decided in favor of appellant.
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