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Mr. Rajiv Praful Kamdar Versus Commissioner of Customs (Export) , Nhavasheva

2016 (3) TMI 336 - CESTAT MUMBAI

Imposition of penalty - Under Section 112(a) of the Customs Act, 1962 - Appellant on request introduced one CHA to M/s FIL and acted as coordinator for forwarding the documents received from importer i.e. M/s FIL to such CHA which results in involving him in aiding and abetting in diversion of the imported garlic into the local market which was supposed to be re-exported after processing - Held that:- the role of the appellant is not restricted to introduction of the parties but have actively as .....

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14-Mum - Dated:- 22-6-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri Stelin Mathew, Advocate For the Respondent : Shri S. J. Sahu, Asst. Commr. (A.R.) ORDER PER: ANIL CHOUDHARY: The present appeal has been filed by Mr. Rajiv Praful Kamdar, the appellant herein being aggrieved by Order-in-Original No. 71/2014/CAC/CC(ADJ)SJ dated 17.06.2014 passed by the Commissioner of Customs (ADJ), Mumbai-I, imposing penalty of ₹ 5000/- under Section 112(b) of the Customs Act. 2. .....

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llant introduced one CHA namely, M/s. D.R. Sonata & Sons for assisting in clearance of garlic imported by M/s. Frost. The appellant also acted as coordinator i.e. forwarded the documents received from importer at Kanpur to the CHA at Mumbai, as the importer was not having any office at Mumbai. All the clearing charges, duty etc. was paid by the importers directly to the clearing agent. Further only part of the total consignment under import i.e. 140 MTs out of 1050 MTs was cleared by the sai .....

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ance licence and scheme by deviating garlic imported duty-free in the local market for profit. Further to fulfil the export obligation, they attempted to export clay powder by mis-declaring the same as garlic powder. Intelligence also indicated that the imports and exports through JNPT is being managed by one Nirmal Agarwal. Further facts are that out of balance of 910 MT, 390 MT garlic having assessable value of ₹ 52,09,228/ was imported through Chennai Port, through CHA M/s. Guru Shippin .....

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s CHA. A show-cause notice dated 28.01.2005 was issued on importers and among others on the appellant, wherein the appellant was alleged to having abetted in the illegal of diversion of 104 MT of garlic imported duty-free in the local market for it legal profit by M/s. FIL by introducing the CHA, in directing and instructing him from time to time, directing him to hand over the duty-free imported goods to M/s. Mehta ICC and Cold Storage, Navi Mumbai and also directing the said storage owner to d .....

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lement commission but as he had challenged the allegations in the show-cause notice, this case was not found fit for settlement and referred back to the adjudicating authority. Further with respect to the 104 MT of garlic in question that was imported but matching export not made after processing and that the goods exported were undoubtedly clay powder and not garlic powder. In the application of settlement by Frost International Ltd. before the settlement commission, it was held that this appel .....

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le to set aside. Further as the dispute have settled before the settlement commission by the main persons and while the company and its directors in such circumstances the status of this appellant being a co-noticee should also have settled. It is further contended that the learned Commissioner has misled on the ruling of the Apex Court in the case of S. P. Cheng Naidu 1994 (1) SCC 1. It is further contended that the Commissioner has failed to appreciate that in the case before the Apex Court it .....

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All along the appellant have acted only as the facilitator and helping the actual importer as because he does not have an office at Mumbai. Save and except this, there is no allegation nor received any consideration or the profits, in the whole cycle of events. The appellant have not even paid any remuneration to either the CHA, nor have handled on executed any documents of title. It is further stated that the condition precedent for imposing penalty under Section 112(b) of the Act is that any p .....

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