TMI Blog2021 (6) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... has been placed on the Customs Brokers. If just self attestation was enough than there was no need to put of responsibility of KYC on Customs Broker. He also admitted to forging of signatures. His only defense seems to be that he was merely an employee following direction of superior and that the Superior Shri Amit Khatu was let off. The appellant has failed in his duty as H- Cardholder and actively involved himself in facilitating evasion of customs duty. The appellant was given specific responsibility by revenue by making him an H- Card Holder. He cannot simply pass the blame to his superior G- Card Holder - the charges under section 112(a) of the customs act as well as 114A of the customs act are upheld. Appeal dismissed - decided against appellant. - Customs Appeal No. 11906 of 2017 - A/12245/2021 - Dated:- 17-6-2021 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Ms Ruhi Jhota, Advocate for the Appellant Shri Sanjiv Kinker, Superintendent (AR) for the Respondent ORDER This appeal has been filed by Shri Manoj Gadhiya against imposition of penalty under customs Act. 2. The case was booked against M/s Rudrani Impex Pvt Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he and Mr Manoj Gadhiya, after the death of N.B Agarwal (earlier Proprietor, used the G Card Details of Mr Amit Khatu in the import documents and also signed for Mr Khatu. They both had further signed import documents in the name of Mr N B Agarwal who had already expired. From the above facts, it is clear that both Mr Haresh Ghadiya and Mr Manoj Gadhiyahave not acted in due diligience as they had not verified the antecedents identity and functioning of the dummy units at their declared address. Both Mr Haresh Gadhiya and Mr Manoj Gadhiya knew that the import documents were being filed by them on behalf of dummy units without verifying their existence. By the above acts, they have abetted RIPL in filing false documents and also dealt with the goods in a manner which they knew were offending in nature and would be liable to confiscation,. Therefore, Mr Haresh Gadhiya and Mr Manoj Gadhiya cannot escape their liability for penal action under Section 112 (a) of the Act. I also find that Mr Haresh Gadhiya and Mr Manoj Gadhiya had forged the signatures of Mr N B Agarwal , the earlier proprietor under section 114 AA of the Act as they used forged documents for import of the computerized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry, the 2nd 3rd copy of bill of entry obtained from CMC were sent to head office at Mumbai and Shri Amit C. Khatu, G Card holder signed the same and returned it to them and thereafter they submitted the same to Customs at ICD, Sachin for their signature, the appellant informed that on behalf of the importers either his office staff or he himself remained present during inspection/examination of cargo.The importers were never present when the imports were of M/s Rudrani Impex Pvt Ltd. 3.3 The appellant also informed the officers that he used to do verification of electricity bills of Torrent power from the website as well as Vera (tax) Bill issued by Surat Municipal Corporation from SMC website and did not find any incorrect bills during such verification of the said documents through these official websites. The appellant informed that for the clients of Surat they had taken KYCs and authorization letters from the respective High Sea Sellers and submitted to the Customs authority and they did not have KYCs and authorization letters in their records. It was also informed that the appellant had taken KYCs from M/S Rudrani Impex in respect of importers who had imported the embr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant submits that due diligence to the possible extent has been taken by the appellant and there is no reason available on record or proved by the adjudicating authority to show that the appellant had prior knowledge about the importer firms begin dummy. The appellant submits that all KYCs of the importers which were self-attested and submitted by M/s Rudrani Impex who was regular client of the appellant and Mobile number of its Director and Employee were available with the appellant, these KYC documents were also submitted to the custom department without retaining the copy of the same. The appellant relied on the following cases: V. Esakia Pillai Vs CC Chennai 2001 (138) ELT 802 (Tri. Chennai) Hindustan Steel Ltd. Vs State of Orrisa 1978 (2) ELT J159(SC) Union of India (UOI) and Ors. Vs Raja Agencies 1993 (42) ECC 166 which has been confirmed by the Hon ble Supreme Court reported in 1998 (102) ELT A154 U. Shivasubramanianv. CC Trichy reported in 2004 (165) ELT 97 (Tri. Chennai) There is no allegation in this case that the appellant as CB had received any extra benefit or additional amounts from M/s Rudrani Impex for which the forged or fake documents wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarwal, proprietor of M/S Ukinex Commercial Service. 4.1 He further pointed out that Shri Kaushal D Shukla director of RIPL as in statement dated 16.01.2014 (RUD -144) has stated that when buyers approached them for importation of the machinery, they asked them to provide the documents viz. Photo Identity Proof, PAN Card, Electricity Bill for residence, Factory Electricity Bill, Factory Rent Agreement, original SSI Certificate, original EPCG License (both copies), that after getting all the said documents, one Xerox set of all the Said documents were handed over to their CHA wherein Shri Manojbhai Gadhiya, partner of Seacamp Exim Services Pvt. Ltd., their CHA firm made the requisite corrections, if required, by manipulating in the documents required for submission to Customs authorities at ICD Sachin, Surat for imports of machines and also get notarized the such mended/ created documents and completed all formalities ; Learned Authorized Representative relied on the following portion of the notice that he was shown File No. 1 of Annexure A containing 68 pages, seized under the Panchnama dated 29.11.2013 drawn at their office situated at 309, Union Trade Centre, Surat an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Documents in respect of ownership of the premises landlord, Copy of Electricity Bill, Copy of EPCG Bond etc, that pages nos 3 and 4 of the said File No. 7 were copies of Electricity Bill in respect of Service No. 500230756 and in one copy at page no. 3, name of consumer was mentioned as Shri Rajeshkumar Uttamram Prajapati and in the second bill at page no 4, name of consumer was mentioned as Shri Narayan Mallaraddy Patel, that the correct name of the Consumer was Shri Rajeshkumar Uttamram Prajapati as per Bill placed at page 3 , though the certain alteration in address i.e. P.No. 187/A had been made by altering as P187-188, that the said Electricity Bill had been fabricated by altering the name of the consumer and address as mentioned above, that the said fabrication in name and address had been done by Shri Manoj Gadhiya; That page nos.9 to 12 of the said File No.7 were original copy rent deed made between Shri Rajeshkumar Uttamram Prajapati, Prop. of M/s Mahadev Creation, Surat and Shri Narayan Mallaraddy Patel, created owner of the premises i.e. Plot no.187 to 188, Ambika Ind. Estate, U.M Road, Surat made for 11 months and page Nos 53 to 54 were photo copy of manipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CHA. Any contravention of such obligations even without intent would be sufficient to invite upon the CHA the punishment listed in the Regulations. Any deliberate contravention of the law has to be dealt with most seriously. Regulations 13 makes it very clear that CHA license cannot be sold or transferred. The proceedings in the case show and establish that by his action Shri. Maru had in fact transferred the license to several people for pecuniary benefits. Such contraventions have to be viewed seriously and hence the order of the Commissioner is correct. 5. We have considered rival submission. The charge raised by appellant that he fabricated documents and forged the signature thereby allowing import of machines by fictitious non existing importers leading to loss of custom duty. This evidence is essentially in the shape of the statement of co accused. It is noticed that Shri Manoj Gadhiya has admitted in his statement dated 13.02.2014 that he was looking after over all custom clearance work of this RIPL till he resigned on 1st October 2013. He also admitted that he was looking after the work related to DGFT office viz. IEC , EPCG license etc. He admitted That M/s. Uki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nicipal Corporation from SMC website. He stated that he had not found any incorrect bills during such verification of the said documents through the website of Torrent Power And Surat Municipal Corporation. This is an incorrect assertion. He was shown page no. 2 of file no. 13 which was photo copy of Torrent Power Bill in respect of service member 500599418 and meter no. 83300329 for the month of June, 2013 wherein the name of the consumer was mentioned as Shri. Vijaybhai odhavbhai Virani, Plot no. 689-691, 1st floor, new GIDC, fulpada road, katargam, Surat, that he was also shown letter Ref. BDM/AP/13631 dated 13.01.2014 of the assistant General manager (A.P). Torrent Power Limited, Surat and original bill of Service No. 500599418 and Meter No. 83300329 bearing the name of consumer Bhaveshbhai Vallabhbhai Bharodiya. As per the electricity bill of Torrent Power Ltd., owner of the said Plot no. 689, 1st floor, New GIDC, fulpada road, katargam, Surat, was Bhaveshbhai Vallabhbhai Bharodiya where as the rent agreement palced on page nos. 4 to 7 of said file no 13 for the premises Plot no. 689-691, 1st floor, new GIDC, fulpada road, katargam, Surat, showing the owner of the said plot wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted there been drastic manipulation for assisting in alleged evasion the employers would definitely come to have noticed since prior to April 2013 the documents were sent to be signed by the G-Card holders of /s Ukinex Commercial Services as there were no regulations as to prior signing of the documents like Bills of Entry and verification. 2. As regard forgery of signatures of Amit khatu , G- Card Holder and the proprietor NB Agarwal , it was submitted that as per the instruction of the new custom officials the signed bills of Entry and Verification were required to be provided beforehand . therefore Amit Khatu, G- Card Holder and the proprietor NB Agarwal instructed Shri Manoj Gadhiya, the appellant to sign on their behalf and proceed with timely filing as they were stationed at Mumbai and the to and fro courier of documents would take around a weeks time delaying filing of Bills of Entries. In connection with forgery post death of proprietor of M/s Ukinex Commercials Services, Shri NB Agarwal, it is to submitted that they were not informed of his death until they appellant himself called in the order to ask for signed cheque books of Shri NB Agarwal, for payment of admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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