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Baraskar Brothers Versus Commissioner of Customs (General) , Mumbai

2016 (1) TMI 874 - CESTAT MUMBAI

Revocation of CHA License - forfeited of entire amount of security deposit - period of limitation - appellant submits that the entire proceeding of inquiry suspension and revocation of it is time barred. He submits that the mis-declaration was detected in January 2008 and the suspension of the licence was ordered in October 2012. - Held that:- t only due to delay in various time limitation in the proceeding, the action of revocation cannot be held illegal. The time limitation provided in Regulat .....

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n if the offence is committed by employee but since it was authorized by the appellant to his employee, it is the appellant who is responsible for offence committed by his employee.

The impugned order is legal and proper, which does not require any interference. - Decided against the appellants. - Appeal No. C/88223/14-Mum - Dated:- 11-12-2015 - MR. P.S. PRUTHI, MEMBER (TECHNICAL) AND MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Anil Balani , Advocate For the Responden .....

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ense under Regulation 10(1) of CHALR, 1984 (then Regulation 9(1) of CHALR, 2004, now Regulation 7(1) of CBLR, 2013) in Mumbai Customs under a partnership firm with two partners, viz. Shri Prakash Anant Baraskar and Shri Vijay Anant Baraskar. The appellant filed a Bill of Entry No. 672466 dated 16/01/2008 for the imported goods in container No. BAXU 2598677 together with container No. BAXU 5004995 and BAXU 5108303 on behalf of importer M/s Laxmi Enterprises, Mulund (West), Mumbai, the items in th .....

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Mumbai Customs Zone-II that in the Speedy CFS, a smell of garlic emanating from container No. BAXU 2598677, located at the import yard of Speedy CFS, Jawaharlal Nehru Port, Nhava Sheva was felt. The smell of garlic from the container gave suspicion regarding the truth of items declared by importer. When enquiry was made with Shri Vijay Anant Baraskar, parter of M/s Baraskar Brothers, Shri Baraskar denied having any knowledge of importer M/s Laxmi Enterprises or import of cosmetics under the sai .....

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s of the said importer at 116/86, Hindustan Chowk, Mulund Colony, Mulund (West), Mumbai-400080 and no person by name Amit B. Balmukund Agarwal (the director of the said importer firm) resides at the given address. Even after keeping a discreet watch to find out the actual person interested in clearing the consignment, no one came forward to clear the said goods. Shri Vijay Anant Baraskar was unable to contact Shri Anish Sachde, he submitted the duplicate copy of Bill of Entry No. 672466 dated 16 .....

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total weight 48.9 Metric tons) while only 842 cartons contain assorted bath soap, shampoo/conditioner i.e. 85% cargo consisting of garlic. The cartons of garlic round sticker inscribed with what appeared to be Chinese characters was affixed. The goods were seized under a panchanama dated 31/01/2008 and 01/02/2008 and representative samples were drawn which were forwarded to the Regional Plant Quarantine Department and Public Health Department for testing. The department vide the letter dated 05/ .....

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ration of Greater Mumbai through their report dated 10/02/2008 informed that the samples of white garlic were unfit for human consumption. It was found that the value of seized 48.9 metric tons white garlic (4890 cartons) and 842 cartons of assorted bath soap, shampoo/conditioner was ascertained to be ₹ 78,24,000/- and ₹ 7,20,900/- respectively. 3. In view of the above undisputed offence, enquiry proceeding was initiated against the appellant. Accordingly summons to Shri Vijay Anant .....

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regarding signing of check list pertaining to the Bill of Entry No. 672466 dated 16/01/2008 of M/s Laxmi Enterprises, he stated that he did not know who signed the said check list. It was pointed out to Shri Vijay Anant Baraskar that earlier two consignments under B.o.E. Nos. 662454 and 662447 both dated 09/01/2008, of Laxmi Enterprises were also cleared by this firm. Shri Baraskar stated that he has no knowledge about this transaction and the same was not recorded in his firms job register. He .....

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signature and cardex number is S-2778 of Shri Anish H. Sachde was seen at the foot of the form in place of the authorized signatory of Baraskar Brothers. He said form was countersigned by Shri Vijay Anant Baraskar, partner of M/s Baraskar Brothers, on behalf of the importer/authorized CHA. Further the name, signature and cardex number S-2778 of Shri Anish Sachde was seen at the designated place of this checklist. 4. On the above fact which is contrary to the statement by Shri Baraskar, further s .....

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as allowed to use his license with mutual understanding. He was getting ₹ 2000/- for every import job on his licence from Shri Anish Sachde. 5. In view of the above primafacie involvement of M/s Baraskar Brothers in the alleged smuggling of garlic, in the independent proceeding under CHALR, 2004, the articles of charges were framed where under it was proposed that the Appellant or CHA is primafacie failed in discharging their obligation as Customs Broker as per Regulations 12, 13(a), 13(d) .....

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o frequent travelling, to supervise each and every clearance, they have believed their employees, hence they cannot be held responsible for the offence, if any, committed by their employees. 6. The Ld. Commissioner after personal hearing and considering the defense submission of the Appellant came to conclusion that CHA is guilty of violation of Regulations 12 and sub-regulations (a), (d), (e), (k) & (n) of Regulation 13 and sub-regulation (8) of Regulation 19 of CHALR, 2004 (now Regulation .....

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proceeding of inquiry suspension and revocation of it is time barred. He submits that the mis-declaration was detected in January 2008 and the suspension of the licence was ordered in October 2012. The inquiry proceeding were completed in sixteen months as against statutory time limit of nine months. Further the proceeding is time bar and on that ground, revocation of licence could not have been ordered. It is his submission that whatsoever offence of mis-declaration, it was committed by the imp .....

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ers reliance on the judgment of Santon Shipping Service and Ashiana Cargo Services which is distinguishable on facts, as there is no contravention of Regulations of CHALR 2004, the Ld. Commissioner failed to appreciate that Regulation 13(a) could be invoked only if there is a complaint by an importer that the appellant was acting without authority. In the instant case, no one has made any such complaint against the appellant. The IEC holder was a friend of Anish Sachde, therefore the appellant .....

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orter. The documents were signed by the employee of Baraskar Brothers as Shri Vijay Baraskar was travelling during the relevant period. Hence there is no violation of Regulation 13(k). No inefficiency was established in the inquiry proceeding on the part of the appellant, therefore Regulation 11(h) was not contravened. The appellant had exercised supervision on all its employees and had cooperated with department and assisted in the seizure of garlic. Hence, charge under Regulation 19(8) is not .....

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T 65 (Tri.) - upheld by the Hon ble Gujarat High Court - 2011 (272) ELT 180 (Guj.) (6) Mhatre & Sons - 2009 (241) ELT 401 (Tri. Mum) He also submits that the impugned order is contrary to the law laid down by the Hon ble Delhi High Court in the case of Ashiana Cargo Services reported in 2014 (302) ELT 161 (Del.). 8. Shri M.K. Sarangi, Ld. Joint Commissioner (AR) appearing on behalf of the Respondent reiterates the findings of the impugned order. He submits that the Ld. Commissioner has given .....

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s directory and not mandatory. He relied on judgment of Mhatre & Sons - 2009 (241) ELT 401 (Tri. Mum). He also placed reliance on the judgment of this Tribunal in the case of Unison Clearing Pvt Ltd Vs Commr of Customs (Gen), Mumbai - 2015-TIOL-1253-CESTAT-MUM. As regard merit, he submits that from the entire inquiry and the facts of the case, it is clear that the appellant was well aware and also involved in the offence of illegal import of prohibited goods i.e. garlic by mis-declaring the .....

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their own case M/s Baraskar Brothers Vs Commr of Customs (Gen), Mum - 2013 (294) ELT 415 (Tri.- Mum) has though allowed the appeal but the appellant was not exonerated from the charges leveled against them. He submits that the appellant does not deserve for any leniency as despite punishment given in the earlier occasion, the appellant indulged into serious offence of smuggling of garlic. 9. We have carefully considered the submissions made by both the sides. 10. As regard the defence made by th .....

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Mumbai - 2015-TIOL-1253-CESTAT-MUM , it was held that only due to delay in various time limitation in the proceeding, the action of revocation cannot be held illegal. The time limitation provided in Regulations is directory and not mandatory. In view of this position, we are the view that the proceeding of revocation of appellants CHA licence is not time bar. As regard merit of the case, we find that the importer has illegally imported garlic by concealing the same under the consignment of bath .....

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