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TMI Blog2014 (3) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- executed was directed to be enforced and appropriated for payment of fine and penalty. Whereas the appellant Mukesh D. Thakkar has filed appeal against Order-in-Appeal No. 695(Adjn-Exp)/2013(JNCH)/EXP-179 dated 30.7.2013 passed by the Commissioner of Customs (Appeals), Mumbai-II, who is a CHA of the aforementioned appellants and penalty imposed upon him by the Commissioner vide Order-in-Original dated 31.3.2012 of Rs. 20 lakhs under Section 114(i) was reduced to Rs. 4 lakhs. Being aggrieved, the appellants have preferred the appeal before this Tribunal. 2. The facts in brief are that the appellant M/s Chawla Trading Company, proprietor Shri Daulatram Chawla is engaged in trading of rice and exporting of the same and the appellant Shri Santosh Chawla is Manager of the appellant export house and the appellant Shri Mukesh D. Thakkar is a CHA engaged by the said exporters. The facts and charges as per the show-cause notice are that the appellant had filed 4 shipping bills dated 30.7.2009, 4.8.2009, 1.8.2009 and 6.8.2009 for export of Basmati Rice duly permitted by Agricultural and Processed Food Products Export Development Authority (APEDA), the licensing authority under the Forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary investigation at the Delhi. The premises of supplier M/s V.K. Food Traders was searched and statement of exporter Mr. Daulatram Chawla, proprietor of M/s Chawla Trading Company was recorded on 11.8.2009, wherein it was stated that rice has been procured from Delhi and Haryana. It was further stated that he has been in regular business of export of Basmati rice to Dubai, where he had around 10 buyers and he had not exported non-basmati rice after the prohibition was imposed by the Government. The statement of Shri Daulatram was recorded on 19.8.2009 at the DRI office in Mumbai. It was deposed by him that he had also been purchasing non-Basmati rice and exporting the same by mis-declaring as basmati rice. Further he is holding the IEC No. 0306004736 in the name M/s Chawla Trading Company and that he was the proprietor of the said firm and his nephew Shri Santosh Chawla was associated in running his business. Further, he has exported 40 containers of non-Basmati rice to Dubai from ICD, Nagpur, JNPT, Nhava Sheva etc. by mis-declaring Non-Basmati rice as Basmati rice. It was further stated by him that in the month of March, 2009, 11 containers contained non-Basmati rice mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Shri Vijay Mange, owner of M/s. Shree Guru Kripa Agencies and his employee Shri Bharat Gore had approached him and enquired whether he was interested in clearing consignments of some companies, which is to be factory stuffed and an amount of Rs. 300/- per container was agreed by him and that about 400-500 containers were to be exported, that he had allowed Shri Vijay Mange to use his CHA licence for monetary consideration and the said consignment belongs to various exporters including M/s Chawla Trading Company, one of the appellant herein. 2.3 That the appellant M/s Santosh Chawla retracted his statement by a detailed submission and retraction dated 14.10.2009 filed before the ADG, DRI, Mumbai wherein he has said that he retracts all the statements given before the Intelligence Officer on 19.8.2009 and 20.8.2009 as the same had been taken under coercion and pressure. It is further stated that 11 containers of rice weighing 275 MTs were inspected but there were only 3 containers at the Port ready for export to Dubai and these 3 containers ready for export weighing only 75 MTs were detained by the DRI. The rice weighting 200 MT has been lying at the Navkar CFS, Panvel, Mumbai. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not reliable as the said authority was authorized w.e.f. 1.10.2010. Thus they were not the authorized laboratory for testing of the samples during the period in investigation, regarding the export shipment in question. 3.1 The appellants appeared and contested the show-cause notice and by a common Order-in-Original only on the basis of the retracted statements, the findings were recorded that M/s Chawla Trading Company had purchased plain rice in the name of basmati rice and the said non-basmati rice was being exported by mis-declaring as basmati rice. They further reiterated that the samples tested by 3 different laboratory and the test results of all 3 laboratories are at variance with each other. While one laboratory categorically says that the said rice to be non-basmati rice. Further, report of Basmati Export Development Foundation (BEDF), Meerut described them as a mix of basmati and non-basmati rice with plain rice being markedly of higher percentage than that occurred naturally. It is further recorded that the Agmark Laboratory and BEDF laboratory are government recognized and accordingly, reliance was placed on the report of BEDF, Meerut. Accordingly, it was held that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a mix of basmati and non-basmati rice with plain rice being in markedly higher percentage (ranging from 41.50% to 91.30) than that would occur naturally. I find that both the Agmark Laboratory and Basmati Export Development Foundation, Meerut are govt. recognized." Thus finding in the records, two reports of the Govt. laboratories support the contention of the appellants that there is no case of mis-declaration. It was held that benefit of doubt must go to the appellant and accordingly, taken a lenient view and relief has been given as follows:- (i) The order of confiscation of goods was upheld but redemption fine was reduced from Rs. 50 lakhs to Rs. 5 lakhs. Further, the penalty imposed on the appellant firm M/s Chawla Trading Company was reduced from Rs. 50 lakhs to Rs. 5 lakhs and further penalty imposed on Shri Santosh Chawla of Rs. 10 lakhs was reduced to Rs. 2 lakhs. (ii) In a separate appeal, order passed by the same Commissioner (Appeals) in case of other appellant Shri Mukesh D Thakkar, CHA, it was held that he is giving the benefit of doubt as mentioned in para 8 of the order. In absence of any corroborative evidence, the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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