TMI Blog2008 (10) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and export consignment each of M/s. Ventura alloys Electrics (India) under some advance licences and these firms were subsequently found to be fictitious having no manufacturing activity even though the goods imported under the advance licence were required to be used for actual manufacture by these two firms. The goods were ultimately diverted in the local market and were not used for the specified purpose. The charge against the CHA is that he has allowed one Shri Ramdas Dormale as unofficial working partner who has dealt with the consignments of the above two firms. M/s. Tony Enterprises has given delivery instructions to the CHA to deliver the goods after import at their godown in Panvel but later on manipulated documents were kep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship was entered into on 12-11-2003, wherein two non-working partners i.e. Shri Rushikesh Shamrao Pawar and Kum. Shalaka Shamrao Pawar were added to their proprietorship firm and this was duly intimated and noted by the department. Article of Charge-II : The CHA has violated Regulation 13(d) of CHALR, 2004 which required that the CHA will advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. The above charge was based on the fact that the CHA and its employees associated themselves with the imports made by M/s. Tony Enterprises and M/s. Ventura alloys Electrics (India) under advance lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plea of the CHA that Shri Ramaas Dhormale was having a customs pass to transact the business on the ground that Shri Ramdas Dhormale acted as an authorized signatory which he could not have done, once the firm was proprietary concern and no authorization to this effect was filed by the CHA. It was therefore concluded that the CHA has conducted the business through employees who were not authorized. In respect of Articles of Charge-II, it was observed by the Commissioner that the CHA has produced delivery instructions addressed to it by M/s. Tony Enterprises requiring him to deliver imported goods in godown at New Panvel but on verification the said address was found non-existing, which fact shows that the CHA did not discharge his duties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their records, knowing fully, well that the goods were diverted in the local market. It is his submission that the show cause notice itself states that the delivery of the goods was arranged by the importer himself and manipulated transport documents were given to him for keeping in record. In such a situation, they simply kept the documents which were delivered by the importer and had no means of knowing that the goods were actually not sent and were instead diverted. Their job came to an end, once the goods were cleared from the Customs area and they referred to the decision of the Tribunal in the case of Ranjit Singhvi, 2004 (170) E.L.T. 375 (Tri.-Mumbai) where, in case of violation of actual user condition, it was held that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires that he has to keep records of the delivery instructions, even when the goods are themselves transported by the importer after its clearance from docks area. There is no evidence with the department that the CHA was in the know that the goods were going to be diverted and the charge has been upheld only on presumptions. At best, there was a technical breach of not informing the change in the constitution of partnership for which the licence could not be revoked, as business was conducted through a Customs pass holder employee. 6. We have considered the submissions. We find that all the three articles of charges are based on two facts that the change in the partnership firm was not intimated to the Customs and that Shri Ramdas Dhormal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain records after delivery of the goods, more so, where transport after delivery is arranged by the importer himself. In view of this the findings of the Commissioner that the CHA has aided and abetted in the diversion of the goods and did not inform the Assistant Commissioner/Dy. Commissioner of customs regarding non-compliance, cannot be upheld and are accordingly set aside. The only charge, which con be established, is regarding the change in the constitution of the firm and allowing Shri Ramdas Dhormale to act as authorized signatory. Here also we find that the charges framed nowhere states that he acted as an authorized signatory, but these are observations made by the Commissioner, which are not based on enquiry report. Even if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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