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Daroowalla Bros. & Co. Versus Commissioner of Customs (General) , Mumbai

2016 (5) TMI 499 - CESTAT MUMBAI

Revocation of CHA licence and forfeiture of security deposit - Seizure of Red Sanders Wood Logs - alleged involvement in documentation in respect of consignment of Red Sanders Wood Logs attempted to be exported which is prohibited and not allowed for export - Held that:- it is absolutely clear that documents was forged and last page of declaration which appears the signature is not signed by the appellant or his partner for the purpose of clearance of Red Sanders Wood Logs. This made very clear .....

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smuggling. From enquiry and statement of Shri Parvez Irani, it clearly appears that Shri Shailesh Bhanushali on his personal capacity colluded with the exporters for clearing the Red Sanders Wood Logs and from entire modus operandi which he has adopted, it is found that appellant or his partner is nowhere concerned either in the preparation of the documents or submission thereof.

It is also found that there is allegation on the appellant for non-compliance of the Facility Notice No. .....

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as filed at the CMC for which Thoka Number is required without which CHA would not know that such shipping bill was filed, this because Customs House EDI system did not give the list of shipping bills which are filed at the Service Centre, only those shipping bills filed online get displayed on the system during the relevant period. Since the documents filed without knowledge of the appellant, the shipping bill has not been reflected in the system. This explanation given by the appellant was fou .....

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zed to file any documents and the documents was also forged and there is no corroborative evidence to support the statement of Shri Shailesh Bhanushali. Moreover Shri Shailesh Bhanusftali has subsequently changed his statement in examination and re-examination that filing of forged documents to the CMC was not known to the appellant. Therefore, the appellant is nowhere involved in the alleged smuggling or submission of forged document related thereto or abetted to the said offence. The impugned .....

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Commissioner of Customs (General), New Custom House, Ballard Estate, Mumbai, wherein it was ordered the revocation of the CHA Licence No. 11/693 of M/s. Daroowalla Bros., & Co. and also forfeited the entire amount of security deposit. 2. The fact of the case is that appellant M/s. Daroowalla Bros. & Co. holding CHA Licence No. 11/693 under Regulation 10(1) of CHALR, 1984 in Mumbai Customs. The Commissioner of Customs (Export), JNCH, Nhava Sheva seized container No. GATU 0537513 cont .....

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g bill the goods declared was Printed Packaging Material and shows to have stuffed from M/s. Sweet Industries India Pvt. Ltd., Mulund under IEC No. 0389038083. Earlier one more shipping bill No. 9328952, dated 3-2-2011 was filed under the same IEC No. and CHA No. 11/693 of M/s. Daroowalla Bros. & Co., that the said shipping bill was generated in the EDI system ICES, JNPT, Nhava Sheva and subsequently purged due to no follow up by the exporter/CHA and no export took place against the said Shi .....

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he person who took away the Export Dockets from their records on pretext of photocopying the invoice and never returned them. Shri Shailesh Bhanushali in his statement dated 23-2-2011 stated that he was engaged in doing odd job related to clearance of export goods for Shri Parvez Irani of M/s. Daroowalla Bros. & Co. though he was not a regular employee of the said CHA and denied filing shipping bill No. 9393549, dated 22-2-2011. It was reported that the Export Dockets pertaining to filing of .....

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ne Shri Punit of Mulund that he was deliberately took the export docket from Shri Ravindra Chaudhari and did not return to him. Shri Shailesh Bhanushali was arrested on 24-2-2011 and subsequently released on bail on 1-3-2011 by Magistrate, Uran Court. M/s. CMC vide letter dated 3-3-2011 expressed inability to provide Export Dockets related to Shipping Bill No. 9328952, dated 3-2-2011 stating that they were not traceable. Shri Shailesh Bhanushali, in his next statement dated 21-3-2011 denied fili .....

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ilesh Bhanushali was temporary employee who did odd jobs of dispatch/forwarding of documents from office to their authorized staff attending clearance work in JNCH. In his statement Shri Parvez Irani admitted his failure to comply with the instructions mentioned in Facility Notice No. 41 of 2009, dated 10-7-2009 and Public Notice No. 10/2010, dated 3-2-2010, according to which CHA is duty bound to verify Shipping Bills and Bills of Entry filed in EDI System on their PAN number and inform the dep .....

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the above investigation, licence of the appellant was placed under suspension vide order No. 01/2011, dated 5-4-2011 and thereafter inquiry proceedings were conducted. Various articles of charges were framed under Regulations 13(b), 13(j), 13(n) and 19(8) of CHALR, 2004. On the above charges inquiry officers submitted their inquiry report vide letter dated 23-7-2014 wherein it was reported; (a) Article of Charge-I : This article of Charge was proved against the appellant on the ground that .....

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ustoms department. Report shows that the CHA has allowed unauthorized person, i.e., Shri Shailesh Bhanushali for doing such work therefore, CHA has violated Regulation 13(b) of CHALR, 2004. (c) Article of Charge-III : This article pertains to violation of Regulation 13(j) of CHALR, 2004 which states that the CHA should not refuse access to conceal, remove or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Customs House Agent which is sough .....

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of Regulations 13(n) which states that the CHA should ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay. 2.3 As per enquiry report, the appellant have failed to comply with the procedure laid down in Public Notice Nos. 41/2009 and 10/2010 inasmuch as the appellant have not intimated the filing of shipping bill No. 9328952, dated 3-2-2011 and 9393549, dated 22-2-2011 by checking online, if the shipping bills were filed w .....

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pellant is not at all involved either in the documentation or in the clearance of alleged, attempted smuggling of Red Sanders Wood Logs. He submits that from the entire enquiry of the present CHA case, it is revealed that the persons involved in the documentation are appellant s temporary and unauthorised employee Shri Shailesh Bhanushali, CMC employees Shri Sanjay Patil and Shri Ravindra Chaudhari. It is his submission that these persons have colluded and conspired the entire job of documentati .....

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in turn submit the same to the CMC. Therefore, submission of the documents in the present case by Shri Shailesh Bhanushali and acceptance of the same by the CMC employees is the part of their mutual understandings of their conspiracy without any role of the appellant. The appellant is neither party to this act nor aware of this conspiracy. In this clear position, it cannot be alleged that the appellant are connected to smuggling of Red Sanders. He submits that the appellant have not admitted any .....

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9393549, dated 22-2-2011 were prepared by him without the knowledge of Shri Parvez Irani. Shri Bhanushali also admitted that he had not informed Shri Parvez Irani about filing of shipping bill No. 9393549, dated 22-2-2011 or any details about the consignment. As regard declaration and signature on the said declaration, he submits that it is undisputed fact that the last page of the declaration is photocopy of declaration of some other consignment of appellant s client M/s. PDK International whi .....

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e Red Sanders is not by the appellant. As regard charge of non-compliance of Facility Notice No. 41/2009, dated 10-7-2009 and Public Notice No. 10/2010, dated 3-2-2010, ld. Counsel invite our attention to Examination-in-Chief of Shri Parvez Irani dated 19-12-2012 who stated that at the material time details of only those shipping bills which are filed online would be available. In the present case the shipping bill was filed at the service centre for which Thoka number is required, without which .....

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the appellant and on the basis of false documents, such shipping bill has not been reflected in the system. Therefore, it cannot be said that the appellant have not discharged the obligation cast on them under the said facility notice and public notice. The ld. Counsel submits that in view of the above explained facts which are part of the proceedings before the enquiry/presenting/adjudicating authorities, it is established that the appellant are neither connected to the alleged attempt of smug .....

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ter five months enquiry officer was changed and new officer was appointed on 25-1-2012. Enquiry report was submitted on 23-7-2014 which is nearly after three years from the date of receipt of the alleged offence report. The impugned order was passed on 16-10-2014 which is after more than four years from the date of receipt of offence report. In view of the above dates at every stage the time limit, i.e., prescribed under the regulations has been defied which is in utter defiance of statutory pro .....

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adherence to the time frame provided under Regulation Board also issued Circular No. 9/2010-Cus., dated 8-4-2010 wherein it was directed to the field formation that statutory time limit must be followed. It is his submission that Hon ble Apex Court has settled the issue that Board Circular is binding on the field formation, therefore, even as per the Board Circular the Adjudicating Authority, being bound by the Circular was duty bound to complete proceedings within time frame prescribed and fai .....

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issioner of Cus. (General), Mumbai [2012 (286) E.L.T. 704 (Tri. - Mumbai)] (f) Sharp Logistics Pvt. Ltd. v. Union of India [2013 (290) E.L.T. 321 (Bom.)] (g) Commissioner v. Sharp Logistics Pvt. Ltd. [2014 (308) E.L.T. A48 (Bom.)] (h) Concorde Zoom v. Comm. of Cus. C. Ex. & Service Tax, Hyderabad [2013 (291) E.L.T. 298 (Tri. - Bang.)] (i) Suhas H. Pophale v. Oriental Insurance Company Limited and its Estate Officer [(2014) 4 SCC) 657] (j) A.M. Ahamed & Co. v. Commissioner of Customs (Imp .....

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ppellant is involved in the alleged offence of illegal export of Red Sanders Wood Logs therefore, order is just and proper which does not require any interference. As regard limitation, he submits that ld. Adjudicating Authority given cogent reasoning for the delay which is beyond the control and accordingly it cannot be said that the proceedings for revocation of licence has been delayed intentionally. He further submits that this Tribunal in case of M/s. Unison Clearing Pvt. Ltd. v. Commission .....

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t at Culcutta. (b) Smile Shipping Services v. Commissioner of Customs [2014 (308) E.L.T. 646 (Mad.)] (c) S.C. Ghosh & Co. (India) Pvt. Ltd. v. CC (Admn. & Airport), Kolkata [2015 (317) E.L.T. 85 (Tri. - Kolkata)]. 5. We have carefully considered the submissions made by both sides. 6. The licence of CHA appellant was revoked on their alleged involvement in documentation in respect of consignment of Red Sanders Wood Logs attempted to be exported which is prohibited and not allowe .....

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lant who filed the shipping bill in respect of consignment which contain Red Sanders Wood Logs. Further, statements of two employees of the CMC service centre, where the export documents are presented, i.e., Shri Ravindra Chaudhari and Shri Sanajay Patil were also recorded. The important portion of various statements are extracted below :- Examination Statement dated 19-12-2002 of Parvez Irani : Q.1 I am showing you the statement made by you on 24-3-2011 before the investing officers under .....

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be available and if any shipping bill is filed by the any unauthorized person by submitting the forged or fabricated documents, the CHA will not be able to know that such shipping bill has been filed. I also say that to be able to view status of any shipping bill where documents are submitted at the Service Centre, the Thoka Number will be required. Without such Thoka Number, a CHA will not be able to know that such a shipping bills has been filed. This is because the Customs House EDI system di .....

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pping bill has been filed did not get reflected in the system when I verified the shipping bills filed in accordance with obligation cast on me under the Public Notice and Facility Notice. At the material time, I was not in a position to understand this situation and therefore, as a result of which I could not explain properly or state the correct position. Q.5 When did you come to know about the filing of the Shipping Bill Nos. 9328952, dated 3-3-2011 and 9393549, dated 22-2-2011? A.5&emsp .....

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10. The annexure A of the said shipping bill available with the department is a Xerox copy and not original declaration signed by the authorized employee of the firm. As this point of time, Shri Parvez Irani submitted copy of the said declaration along with letter dated 3-12-2012 issued from F. No. SG/MISC-408/2010-11 SHB (X), JNCH and submitted that the first three pages of the declaration are filled in hand while the last page of the declaration which is required to be signed is a photocopy of .....

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o any export or import consignment of M/s. Sweet Industries India Pvt. Ltd. Examination dated 23-8-2012 of Shri Shailesh Bhanushali : Q.4 Since how long you were working for M/s. Daroowalla Bros. & Co.? A.4 I was working for M/s. Daroowalla Bros., & Co. for 6 to 7 months prior to the case detected in February, 2011. Q.6 Whether you were attending to any other work apart from loading and unloading of export cargo? A.6 Yes. I was submitting documents for check list for .....

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whether this signature is yours. A.9 I have seen the said signature and I say that this is not my signature although the name reads as Shailesh. Q.10 How did CMC accept the documents submitted by you on behalf of M/s. Daroowalla Bros. & Co. even though you did not have Customs pass. A.10 I was introduced to CMC staff by Shri Parvez Irani for submission of documents/Check list on behalf o/s. Daroowalla Bros. & Co. Q.11 Did you submit the documents for Check list for S .....

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eck list filed for Shipping Bill No. 9393549, and 22-2-2011 was also submitted with the knowledge of M/s. Daroowalla Bros. & Co. I did not submit it on my own. Cross-Examination dated 23-8-2012 of Shri Shailesh Bhanushali by Advocate, C. Subba Reddy : Q.3 You were only a temporary employee and according to your reply during the examination in chief have stated that you were attending to loading and unloading of cargo and carting of the cargo. Is this correct : A.3 Yes. Q.5 Is .....

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by you on fax and the declaration was prepared by you without the knowledge of Shri Parvez Irani? A.6 Yes. It is correct. I have given all the details as to how I received the invoice and the fact that I had prepared the declaration after taking out a copy of the Page 4 of declaration relating to another consignment of M/s. PDK International and submitted such documents to the CMC centre. I say that my statement dated 21-3-2011 is correct. Q.8 Are you aware that verification of check l .....

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to the CMC staff or when a person is introduced to them by the CHA. Q.11 Is it correct that you have also given two more statements dated 23-2-2011 and 24-2-2011 under Section 108 of the Customs Act, 1962 and in both the statements you have mentioned that you had submitted the documents at the instance of on Punit? A.11 Yes it is correct. In fact in all the statement I have correctly stated that the documents relating to shipping bill No. 9393549, dated 22-2-2011 were submitted at the .....

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t the documents relating to shipping bill No. 9393549, dated 22-2-2011 were submitted as per the instructions of Shri Parvez Irani is not correct. Is this correct? A.16 Yes it is correct. Examination on re-examination : Q.1 You have given contradictory evidence inasmuch as that during the course of Examination in Chief in reply to Question Nos. 12 and 13 you have stated that Shri Parvez Irani of M/s. Daroowalla Bros. & Co. was aware that the documents submitted by you in relation t .....

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I made before the investigating officer, I recollected the correct position, therefore, I have correctly stated that Parvez Irani of M/s. Daroowalla Bros. & Co. was not aware. I would also like to add that I have not informed anything about the said documents which I filed at the instance of Shri Punit and Ors. Details of Punit as known to me were also given in my statements. From the above, we find that shipping bill was submitted by Shri Shailesh Bhanushali to the CMC and the aforesaid em .....

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gs. The shipping bill was not submitted on his direction Shri Shailesh Bhanushali is temporary employee and is not authorized to submit the documents to the CMC. He being unauthorized person, CMC should not have accepted documents. We find that the declaration filed along with shipping bill No. 9393549, dated 22-2-2011 contained last page wherein signature of the partner of the appellant appeared, is in respect of some other shipping bill for consignment relating to PDK International and it was .....

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any other authorized person. It is also apparent on record from the entire proceedings that the documents was forged which was submitted by Shri Shailesh Bhanushali on his own and who was not authorized to submit the documents. Even CMC staff has also made serious mistake in accepting the documents from an unauthorized person which resulted into serious offence of attempted smuggling. From enquiry and statement of Shri Parvez Irani, it clearly appears that Shri Shailesh Bhanushali on his persona .....

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shipping bills filed in their name, so that if such forged shipping bill is filed, the same can be detected and smuggling of Red Sanders Wood Logs could be avoided. In this regard, we agree with submission of the appellant that at material time details of only those shipping bills which are filed online would be available. In the present case shipping bill was filed at the CMC for which Thoka Number is required without which CHA would not know that such shipping bill was filed, this because Cus .....

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