TMI Blog2020 (2) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... eing committed by the exporters by mis-declaring the value - Without bringing on record any evidence to show that these persons have acted beyond their normal business requirements or had the knowledge of the fraud being committed, they cannot be held liable for aiding or abetting the fraud. Thus the penalty imposed under Section 114(i) and 114(iii) is not maintainable. Similar issue decided in the case of FREIGHTWINGS AND TRAVELS LTD, DASHRATHLAL BHAGWANDAS GUPTA VERSUS COMMISSIONER OF CUSTOMS (EXPORT) ACC, MUMBAI [ 2017 (4) TMI 259 - CESTAT MUMBAI ] where it was held that Mere filing of bills or presentation of goods that were found to be liable to confiscation does not constitute act or omission referred to in section 114 because these are procedural requirements. None of the statements establish that the appellants were aware or participated in the procurement, packing or transportation of the goods. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 437 of 2012, 438 of 2012, 454 of 2012, 459 of 2012 - A/87191-87194/2019 - Dated:- 24-10-2019 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) and 114(iii) of the Customs Act, 1962; g. I hereby impose a penalty of ₹ 4,20,000/- (Rupees Four Lakhs Twenty Thousand only) on Shri Nirmal Agarwal under Section 114(i) and 114(iii) of the Customs Act, 1962; h. I hereby impose a penalty of ₹ 4,20,000/- (Rupees Four Lakhs Twenty Thousand only) on Shri Gyan B Sharma, partner of Vinayak Shipping Agency, CHA under Section 114(i) and 114(iii) of the Customs Act, 1962; i. I hereby impose a penalty of ₹ 4,20,000/- (Rupees Four Lakhs Twenty Thousand only) on Shri Rashid Y Shaikh proprietor of Panorama Express Agency, under Section 114(i) and 114(iii) of the Customs Act, 1962. 2.1 Acting on intelligence, M/s Frost International Ltd is attempting to export low quality readymade garments viz. 100% Cotton Knitted T Shirts from Bombay based ports through its power of Attorney holder Shri Nirmal Agarwal, by mis-declaring its PMV (Present Market Value) and FOB value, so as to avail higher and ineligible amount of duty drawback. During the course of investigation in the said matter of exports by Frost, it was found that the export documents were signed by Shri Ajay Verma who is proprietor of a firm M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed FOB value of ₹ 338.25 per piece of Mens 100% Cotton Knitted T Shirts sought to be exported under Shipping Bill number 5327189 dated 15.03.2004 should not be determined at ₹ 35/- per piece and total FOB value of the export covered by the said shipping bill should not be taken as ₹ 4,20,000/- ii. The declared PMV of ₹ 120 per piece of Mens 100% Cotton Knitted T Shirts sought to be exported under above Shipping Bill filed with Mumbai Custom House should not be determined at ₹ 28.53- per piece. iii. The drawback claimed amounting to ₹ 4,30,254/- in respect of said Mens 100% Cotton Knitted T Shirts sought to be exported under said Shipping Bill filed with Mumbai Custom House should not be denied to them under Section 76(1)(b) of the Customs Act, 1962 as the PMV of goods sought to be exported is less than the drawback due on declared value. iv. The total quantity of 12,000 pieces of Mens 100% Cotton Knitted T Shirts having declared FOB value of ₹ 40,59,000/- and determined FOB value of ₹ 4,20,000/- seized under Seizure Memorandum dated 27.05.004 should not be confiscated under Section 113(d) and 113(i) of the Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 also has not been appearing during the hearing of appeal on appointed and notified dates. Hence this Appeal also needs to be dismissed for non prosecution in terms of Rule 20 of Custom Excise Service Tax Appellate Tribunal Procedure Rules, 1982. 4.3 In respect of other two appellants we have considered the impugned order with submissions made in appeal and during the course of Argument. 4.4 The findings recorded by the Commissioner in the impugned order holding the appellants in appeal No C/454/2012 and C/459/ 2012 are reproduced below: 90. As far as Shri Gyan B Sharma, partner of Vinayak Shipping Agency is concerned, I find that even though they had promised to file written submissions within one week, they did not file any such submission. Further during the course of hearing they had produced a copy of CESTAT order No A/1/CSTB/2008/C dated 24.12.2007 and had submitted that the CESTAT had given decision in their favour. However, on going through the said order, I find that the CESTAT had remanded the case back to the adjudicating officer, in the proceedings pertaining to revocation of their license to work as CHA. Further, I find that Shri Gyan B Sharma has not conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t covered vide S/B No 5327189 dated 15.03.04 is the first consignment that he had handled for M/s Aum International. 4.6 From the above it is quite evident that neither in Show Cause Notice nor adjudication a finding has been recorded that these person were in knowledge of the export fraud being committed by the other co-noticees. CHA has admitted that it was responsible for undertaking the work of custom assessment and physical examination in docks. These are the functions that are to be attended by the CHA in normal course of his business. Similar M/s Panorama Express Agencies was in business of freight forwarding and cargo movement for his client. Nothing has been brought on record by which it can be shown that they had the knowledge of fraud being committed by the exporters by mis-declaring the value. Without bringing on record any evidence to show that these persons have acted beyond their normal business requirements or had the knowledge of the fraud being committed, they cannot be held liable for aiding or abetting the fraud. Thus the penalty imposed under Section 114(i) and 114(iii) is not maintainable. Similar view has been expressed by the tribunal in case of Freigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Akanksha Enterprises v. Commissioner of Customs, Mumbai [2006 (203) E.L.T. 125 (Tri.-Delhi)], it was observed that CHA s role is limited to facilitate the proper filing of the documents as received from the exporter and he is not required to go into the authenticity of the value of the goods. 6. In the present case also, the appellant filed shipping bills on the basis of documents received by them. If there is any difference in the value of the export consignment, the CHA cannot be held responsible for the same as it is not the duty of the CHA to adjudge the correct value of the goods. There is virtually no evidence on record to show that he was aware of the overvaluation of the export consignment and he simplicitor proceeded by the declaration made by the exporters. In such a scenario, the appellant cannot be held liable for any aiding and abetting and consequently to penalty. 7. In the case of Adani Wilmar Ltd. v. Commissioner of Customs (Prev), Jamnagar [2015 (330) E.L.T. 549 (Tri.- Ahmd.)] wherein it was held that non-following of the KYC norms of CHA Licence would result in breach of Regulation 13 of CHALR and not under Customs Act, 1962. In the absence of any e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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