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2016 (5) TMI 913 - CESTAT MUMBAI

2016 (5) TMI 913 - CESTAT MUMBAI - TMI - Levy of penalty on CHA - Import of Ivory and its articles - Prohibited under Foreign Trade Policy and under Wildlife (Protection) Act, 1972 - Mis-declaration of goods and value of goods - Two invoices - Held that:- nothing found on record which suggests that appellant was aware of the content and nature of goods which was subsequently found as two statues made of ivory and other materials which was prohibited. As per Section 114AA, the penalty can be impo .....

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cannot be alleged that the appellant has not followed the provision of Rule 13(d), (e) and (o) of CHALR, 2004 supported by various judgments. - Decided in favour of appellant - Appeal No. C/87444/15-Mum - A/87016/16/SMB - Dated:- 6-4-2016 - MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Prashant Patankar, Consultant with Shri Sandip Batwal, Advocate For the Respondent : Shri S.J. Sahu, Asstt. Commr. (A.R.) ORDER PER : RAMESH NAIR The appeal is directed against Order-in-Appeal No. M .....

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Pair of Porcelain Dolls. The value of goods was declared as US$ 850. On physical examination of the goods by the Wildlife authorities revealed that the statues were made of natural ivory and import of ivory and its articles are prohibited under the Foreign Trade Policy and trade and commerce of the imported ivory is prohibited in India under the Wildlife (Protection) Act, 1972. The case was investigated by the SIIB(I), wherein it was found that initially the CHA submitted commercial invoice N .....

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show cause notice was issued alleging mis-declaration of goods and value of goods, consequently prohibited goods attempted to be imported. The adjudicating authority confirmed the charges of the show cause notice whereby the goods have been absolutely confiscated and penalties were imposed on M/s. Indo Unique Trading Pvt. Ltd., Shri Prem Kedia and Mrs. Kusum Kedia under Section 112A and Section 114AA of Customs Act. A penalty of ₹ 25000/- was imposed on the appellant under Section 114AA of .....

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claration. He submits that initially when the appellant received invoice in the name of Mrs. Kusum Kedia, they found some discrepancy such as the I.E.C. was not in the name of Mrs. Kusum Kedia, but it was in the name of M/s. Indo Unique Trading Pvt. Ltd. and there were some other discrepancies like date and country of origin not mentioned. Therefore, the appellant informed to the overseas freight forwarder M/s. Encore Forwarding Inc., New York who booked the consignment. Thereafter the appellant .....

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learance of the goods, accordingly, when at the time of examination the photograph of the imported goods was called and brought to the notice of custom authority that the imported goods are not matching with the photographs sent by the overseas freight forwarder M/s. Encore Forwarding Inc., New York. He submits that from the entire proceedings, no where it is coming out, the appellant was aware in advance the content of the goods and value thereof. The appellant acted bonafidely on the basis of .....

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e name of two different consignees bearing same number to customs to clear the goods. This was not brought to the notice of customs by the appellant, therefore submitted dubious invoices. This allegation is totally baseless and incorrect for the reason as explained above. In support of his submission, he placed reliance on following judgments:- (i) CC (General), Mumbai vs. Thwerdas Wadhoomal- 2009 (240) ELT A143 (Bom.) (ii) Thwerdas Wadhoomal vs. CC (General), Mumbai- 2008 (221) ELT 252 (Tri.-Mu .....

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herefore it cannot be said that the appellant was not aware of mis-declaration of goods and value thereof. The Ld. Commissioner rightly upheld the penalty on the appellant under Section 114AA of Customs Act, 1962. 5. I have carefully considered the submissions made by both sides. 6. I find that the Ld. Commissioner (Appeals) in the impugned order, upholding the penalty under Section 114AA, given the following finding: 8. Regarding the role of Customs House Agent M/s Kismat Clearing Agency, it is .....

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as- If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any material particular in the transaction of any business for the purpose of this act, shall be liable to penalty not exceeding five times the value of goods. It is also noticed that CHA has not followed the rule 13(d), (e) and (o) of CHALR 2004 in this case by not bringing entire and correct facts to the notice of departmen .....

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t invoice was in the name of Mrs. Kusum Kedia, however there was no I.E.C. in the name of Mrs. Kusum Kedia. The invoice also had some errors regarding country of origin and date. Since against this invoice, the goods could not have been cleared, the CHA informed this discrepancy to the overseas freight forwarding agency M/s. Encore Forwarding Inc., New York. Thereafter, the same numbered invoice was issued which was in the name of M/s. Indo Unique Trading Pvt. Ltd., which posses the I.E.C. In bo .....

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