TMI Blog2023 (5) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... d an agreement with Jayant Vikram with regard to handling of the export consignments. He only used to manage the exporter clearance charges and other matters related to export consignment. Jayant Vikram only had handled the impugned export consignments. It is observed that later Shri Umesh Chand Dhyani vide his subsequent statement dated 23.11.2015 contradicted saying that Jayant Vikram was not the controller of his CHA firm, he was merely a part time employee engaged in marketing/soliciting business on behalf of his firm. M/s National Enterprises had tried to export 10 consignments by committing mis-declaration of description as well as the value of the goods to be exported and that the allegations have been confirmed, goods have been confiscated and the penalties have been imposed upon the exporters and their representatives. None of them have come forward to challenge the orders against them. As such the orders qua them have attained finality. But the said fact cannot be read as a ground for holding that the present appellants i.e. the CHA firm its G-card holder and its employee would have abated with the exporter. Abatement has no where been defined under Customs Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 and 5217212, 5127198 and 5127207 all dated 22.09.2014 for export of Floor Covering (Braided) of Man-made fibre with total declared FOB value of the export goods as Rs. 4,37,52,827/- and claim of drawback of Rs. 39,81,507/-. On checking the goods were found to be machine and made floor coverings. Samples were drawn and sent for testing and Goods were seized. 2. The investigating team found that M/s National Enterprises has two Directors Daljit Singh and Satyender Singh. They hired a CHA namely Ontime Logistics, now known as VKL Cargo (i.e. the appellant) which was owned by two partners namely Umesh Chand Dhyani and Jayant Vikram/appellant. Shri Satyender Singh /appellant was the G-Card holder and Shri Shameshwar Sharma was controlling the activities of exporting firm M/s National Enterprises. After recording the statements of all concerned under Section 108 of Customs Act, 1962 and after conducting the market survey and obtaining the test sample report that a show cause notice No. 22/15/19746 dated 28.09.2015 followed by Corrigendum No. 20/15/8798-809 dated 08.06.2018 was served upon 9 persons including the exporter and the CHA and all the persons found working for both of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meshwar Sharma for exporter had categorically stated that appellants verified the KYC documents as well as the premises of the exporters nothing has ever been stated by the appellants about any knowledge about the product in the consignment and the value thereof. The statement that Jayant Vikram had seen the product costing for Rs. 300/- per piece is highly insufficient an evidence to hold that he along with other appellants in-connivance with the exporter had abated the mis-declaration and over-valuation of the goods under export. In absence of any evidence about monetary benefits to any of the appellants no abatement can be alleged against them as far as the claiming of over-valued duty drawback and the excess benefit under FPS are concerned. While relying upon the decision in the case of Haroon Haji Abdulla versus Statement of Maharashtra reported as 1999 (110) E.L.T. 309 (S.C.), Kunal Travels (Cargo) versus CC (I G), IGI Airport, New Delhi reported as 2017 (354) E.L.T. 447 (Del.) and the Tribunal decision in the case of Ontime Logistics versus Commissioner of Customs, Indore vide final order No. 52104 of 2016 dated 08.06.2016, learned counsel has prayed for setting aside of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement dated 23.11.2015 contradicted saying that Jayant Vikram was not the controller of his CHA firm, he was merely a part time employee engaged in marketing/soliciting business on behalf of his firm. It is also observed that no agreement even between said Umesh Chand Dhyani and Jayant Vikram is placed on record. Hence none of these statements can be relied upon at least for penalizing Jayant Vikaram and Satyender Singh. Otherwise also Section 9-D of Central Excise Act which talks about the admissibility of the statements makes it mandatory for any statement to be admissible into evidence only after the maker of statement has duly been cross-examined by the concerned person. 7.1 Hon ble Delhi High Court of Punjab Haryana in the case of M/s Ambika International versus Union of India reported as 2016 TIOL 1238 (High Court of Punjab Haryana) and also in the case of G-tech Industries versus Union of India reported as 2016 (239) E.L.T. 209 (P H) has held that unless a person is examined in terms of Section 9-D and unless the affected parties is given an opportunity to cross-examine him, no reliance can be placed on any statement recorded under Section 14 of Central Excise Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Shri Shameshwar Sharma to appellant Shri Satyender Singh and that necessary verifications were made by and on behalf of the CHA firm. Though at the addresses mentioned in the KYC the firm was not found existing, however, both its Directors were found available at the given respective addresses. None of them denied to be the Directors of the exporting firm M/s National Enterprises nor they have denied for the 10 shipping bills to have been filed in the name of their firm. Thus, there is no evidence on record to prove that KYC documents submitted with the appellants were false and that no proper verifications were got done by the CHA. 12. The CHA are merely but processing agent on documents of clearance of goods through Customs House. They are not the Inspector to inspect the genuineness of transactions nor they have any allegation to look into the information receive from the exporter/importer. Though it is onus to expect CHA to enquire into and verify of import-export code given by each client for each transaction but when such code is presented there is a prima facie presumption about it to be correct because while issuing the code necessary background check should definite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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