Falcon India vs C.C. New Delhi (Import & General)

[Arising out of Order-in-Appeal No. 73/NK/Policy/2015 dated 13.05.2015 passed by the Commissioner of Customs (GEN), New Customs House, New Delhi]

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

Falcon India Appellant

Vs.

C.C. New Delhi (Import & General) Respondent

Appearance:

Present for the Appellant: Shri V.S. Negi, Advocate

Present for the Respondent: Shri B.B. Sharma, DR

Coram: Honble Ms. Sulekha Beevi C.S., Member (Judicial)

Final Order No. 52799/2015

Per: Sulekha Beevi C.S.

The appellant, who is a CHA is aggrieved by the penalty of Rs.25,000 imposed under Regulation 20/22 of CHALR, 2004.

2. The appellant who was holding CHA license filed Bill of Entry dated 14.8.2012 for importer M/s Rishab International. After examination the goods were seized for mis-declaration. On investigation the importer was not found working at the given address. The appellants CHA licence was suspended vide order dated 24.12.2012 alleging violation of Regulation 13(0) of CHALR, 2004. This suspension was revoked vide order dated 7.2.2013, on the finding that there was no reason to disbelieve the documents furnished by the importer. Thereafter a show cause notice happened to be issued with regard to the same import against M/s Rishabh International. The appellant and partner Sh. Vikas Gupta were co-noticees proposing penalty under Section 12(a)/114AA and Section 117 of the Customs Act, 1962. The proceedings against Shri Vikas Gupta was dropped vide Order-in-Original dated 20.8.2014 and penalty of Rs.50,000 imposed on the appellant was dropped by the Commissioner (Appeals) vide order dated 29.1.2015. Meanwhile the appellant filed Five Bills of Entry on behalf of one importer M/s Avhyuvaya Impex, Delhi. Though goods were cleared without any allegation of mis-declaration, later it was found that the documents were fake. On receipt of report dated 4.11.2013, the appellants license was suspended vide order dated 20.12.2013. This suspension was revoked vide order dated 30.3.2014 on the ground that the requirement to obtain KYC norms was complied. However, while revoking the Suspension the Commissioner of Customs, noted the fact of SCN issued to appellant in earlier case of M/s Rishabh International and took the view that it is a new fact and ordered for issuance of SCN under CHLAR, 2004 for non-observation of KYC norms under Regulation 13(0) of CHALR, 2004. Consequently a SCN dated 7.5.2014 was issued, and finalized in the impugned order which imposed penalty of Rs.25,000/-.

3. The facts narrated above it self would show that the suspension of license was revoked on both occasions on the finding that the appellant has complied with the KYC norms. Though the authority has stated this, the penalty is seen imposed by a self contradicting ground that however, the documents being fake, there was no due diligence on the part of the appellant. It is stated in the impugned order that there is no evidence to conclude that the CHA had prior knowledge that the importer was bogus. When the license has been revoked with a clear cut finding that the appellant has complied with the KYC norms then I do not find any justifiable ground to impose penalty. The appellant has succeeded in establishing a case in his favour.

4. In the result, the impugned order is set aside and the appeal is allowed.

(Pronounced in the open Court)

(Sulekha Beevi C.S.)

Member (Judicial)

K. Gupta

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