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TMI Blog2025 (4) TMI 1605X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal (JV) by virtue of the said contract were entitled to the exemption from Customs duty under Notification No.84/97-Cus. dated 11.11.1997 in respect of the materials to be used in the said project on the basis of Project Authority Certificate (PAC) issued by the competent authority of Gujarat Government. M/s. Dineshchandra R. Agarwal, Deesa (M/s. Agarwal (JV)) purchased 460 KL of HSD valued at Rs.89,13,340/- from M/s. Essar Oil Ltd which was imported by M/s. Essar Oil Ltd, following the "In Bond transfer" facility, and filed three 'ex-bond Bills of Entry' dated 24.12.2004, 09.02.2005 and 16.03.2005 respectively, claiming the exemption in terms of Notification No.84/97-Cus. dated 11.11.1997 on the strength of PAC issued to M/s. Agarwal (JV). M/s. Dineshchandra R. Agarwal, Deesa was not entitled to use the PAC issued to M/s. Agarwal (JV). Out of the total quantity of 460 KL, the applicant diverted 132 KL of HSD to projects other than the specified project and for the remaining quantity of HSD there have been discrepancies in the destination in the invoices raised by M/s. Essar Oil Ltd for which the PAC was issued and thereby violating the conditions of the Notification No.84/97-Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond or declaration on behalf of M/s. Essar Oil Ltd for storing HSD at site based on which infraction of Section 46 is alleged was neither advanced at the time when appellant filed into-bond Bill of Entry on behalf of M/s. Essar Oil Ltd and ex-bond Bills of Entry on behalf of importer nor clearance was held up on this account. All documents required for permitting clearance were duly furnished at the relevant time. There is no such allegation against the appellant that clearance was wrongly permitted without appropriate documents. Therefore, there is no justification for imposing penalty on the appellant Mahendra N. Thacker under Section 117 of the Customs Act, 1962. 3.2 The learned Counsel for the appellant also cited the decision in Glory Agencies vs. Commr. Of Cus. (Seaport-Exports), Chennai, 2009 (244) E.L.T. 596 (Tri-Chennai) in which it was held that responsibility of CHA would cease once goods are handed over to the transporters and CHA cannot be expected to have knowledge as to what happened to the goods after handing them over to the transporters as clearance was permitted on production of a valid PAC. The learned Counsel for the appellant argued that the Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty of the Customs House Agent/ Customs Broker to abide by the Customs House Agents Licensing Regulations (CBLR). Shri Mahendra N. Thacker, CHA/ Customs Broker failed to ensure the leakage of Government revenue by not acting in a manner as specified in the CHA licence. He prepared ex-bond Bill of Entry for the clearance of HSD in respect of B & R and has appended his signature for CHA in the name of M/s. Mahendra N. Thacker. The appellant Mahendra N. Thacker failed to furnish the requisite details in the Customs clearance documents and failed to take an affidavit or indemnity bond or declaration on behalf of M/s. Essar Oil Ltd for storing HSD at site and thereby, violated the provision of Section 46 of the Customs Act, 1962 and the Regulation 13 (a), (d), (l) & (o) of the Customs House Agents Licensing Regulations, 2004, wherein, he failed to obtain authorisation on behalf of M/s. Essar Oil Ltd and buyer for filing Customs clearance documents with Customs. He also failed to verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, [and such other documents relating to the imported goods as may be prescribed] [Substituted 'relating to the imported goods' by Finance Act, 2018 (Act No. 13 of 2018), dated 29.3.2018.]. (4A) [ The importer who presents a bill of entry shall ensure the following, namely: - (a)the accuracy and completeness of the information given therein; (b)the authenticity and validity of any document supporting it; and (c)compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.] (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa." 5.2 Provision of Section 117 of the Customs Act, 1962 provides as follows:- "117. Penalties fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, within fifteen days from the date of receipt of a report from investigating authority, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated. (3) Where a licence is suspended under sub-regulation (2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs House Agent." 5.5 After going through the provision of Section 46 of the Customs Act, it is clear that under Section 46 of the Customs Act, duty has been imposed upon the importer of the goods and not upon the Custom Broker or Customs House Agent, therefore, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant M/s. Mahendra N Thacker arbitrarily without proper justification and the order imposing penalty upon the appellant Mahendra N Thacker is liable to be set aside. Shri Rajiv Sahni:- 7. The learned counsel for the appellant Shri Rajiv Sahni argued that Rajiv Sahni was working merely as Business Development Associate of M/s. Essar Oil Limited. The role of appellant was limited to arrange sale of goods imported by M/s. Essar Oil Limited to various buyers. The appellant had no control over the use of such goods at the end of buyer. In this case, the buyer admittedly used the goods i.e. High Speed Diesel oil at the site that was not covered by PAC. However, the appellant is not responsible for disposal of goods by the buyers. The learned counsel for the appellant further argued that the appellant is neither importer nor seller nor buyer and not even Customs Broker. He was merely an agent who facilitated sale of goods from M/s. Essar Oil Limited to M/s. Agrawal (J.V.). As the appellant Rajiv Sahni had not filed any bill of entry, the appellant cannot be said to have rendered the goods liable to confiscation under Section 111. Hence, imposition of penalty on appellant under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the HSD on the instructions of Shri Rajiv Sahni. The statement of Shri Dharmendrasinh Zala dated 01.04.2005 reveals that he was working on the telephonic instructions of Shri Rajiv Sahni. Shri Rajiv Sahni has also categorically admitted in his statement dated 01.04.2005 that he was aware that M/s. Agrawal (J.V.) was diverting the HSD cleared under PAC to other site like Jetada. Statement dated 04.05.2005 and 26.12.205 of Shri Jagdishchandra Agrawal, the director of M/s. Agrawal (J.V.) clearly brings out the role of Rajiv Sahni as a middleman for sale of imported Customs duty exempted HSD which he had every reason to believe, was being diverted to place other than the World Bank funded project Vadodara - Padra - Janbusar mentioned in the PAC. Shri Rajiv Sahni thus played a key role in the diversion of imported HSD cleared under PAC, in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted the diversion of 460 KL HSD valued at Rs.89,13,340/- and having a duty liability of Rs. 23,08,357/-. 9. I have heard the learned counsel for Shri Rajiv Sahni and the learned Authorized Representative for the department and perused the record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2005 also revealed that he was working on the telephonic instructions of Shri Rajiv Sahni. Shri Rajiv Sahni has also categorically admitted in his statement dated 1st April, 2005 that he was aware that M/s. Agrawal (J.V.) was diverting the HSD cleared under PAC to other site like Jetada. Statements dated 4th May, 2005 and 26th December, 2005 of Shri Jagdishchandra Agrawal, the Director of M/s. Agrawal (J.V.) clearly brings out the role of Rajiv Sahni as a middle man for sale of imported Customs Duty exempted HSD which he had every reason to believe was being diverted to place other than World Bank funded project VadodaraPadra-Jambusar, mentioned in the PAC. Therefore, from the material available on the record, it is clear that Shri Rajiv Sahni played a key role in the diversion of the imported HSD cleared under PAC in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted in the diversion for 460 KL HSD valued at Rs. 89,13,340/- and having a duty liability of Rs. 23,08,357/-. Therefore, the order of the Principal Commissioner imposing penalty of Rs. 2,00,000/- on Shri Rajiv Sahni Business Development Associate of M/s. Essar Oil Limited is su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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