M/S Mishra Rajendra Ramayan vs Commissioner Of Customs (General), ...

(Arising out of Order-in-Original No. 39/2012 dated 19.7.2012 passed by the Commissioner of Customs (General), Mumbai).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)

======================================================

1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

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

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

4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================

M/s Mishra Rajendra Ramayan Appellant

Vs.

Commissioner of Customs (General), Mumbai Respondent

Appearance: Dr. B.R. Tripathi, Advocate for Appellant

Shri M.K. Mall, AC (AR) for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL)

Date of Hearing: 13.03.2015

Date of Decision: 13.03.2015

ORDER NO.

Per: Shri Anil Choudhary

This appeal is filed by the CHA against Order-in-Original No. 39/2012 dated 19.7.2012 passed by the Commissioner of Customs (General), NCH, Mumbai by which the appellant was subjected to forfeiture of Rs.15,000/- from security deposit under Rule 22(7) of CHALR, 2004 was confirmed.

2. It is pointed out by the learned Counsel for the appellant that the reason for disciplinary proceedings no longer exists and as such the impugned order is fit to be set aside. It is further stated that as it is evident from the Order-in-Original that in two cases of import clearance, forged Special Import License (SIL) were used, where the appellant was working as CHA. As such penalties were imposed by the Joint Commissioner on the CHA also vide 2 separate Orders-in-Original. It is further pointed out that the appellant CHA being aggrieved by the aforementioned Order-in-Original had preferred appeal before the Commissioner (Appeals), who vide Order-in-Appeal No. 44 & 45/2009/MCH/JC/Gr.III/08-09 dated 19.2.2009 was pleased to observe that the learned Joint Commissioner tried to search evidence against the appellant which can conclusively prove his involvement in the transaction involved using of forged documents, but in vain. No such evidence was found against the present appellant implicating him in any mischief under the Regulations of CHALR, 2004. He further observed that the Commissioner (Import) could not find at the time of importation that the documents were forged and it is not shown anywhere that the appellant CHA was having knowledge or knowing that the documents are forged. As such, he cannot be penalized. Accordingly, it was held that the levy of penalty on the appellant CHA is bad and was set aside with consequential relief to the appellant. Accordingly, the appellant prays for allowing the present appeal.

3. The learned AR appearing for the Revenue relies on the impugned order.

4. Having heard the rival contentions, we find that the appellant has got relief in the main case before the Commissioner (Appeals) and as such the very basis for disciplinary proceeding not legally exists. Thus, in the interest of justice, we set aside the impugned order. The appeal is allowed with consequential relief to the appellant.

(Dictated and pronounced in Court)

(P.S. Pruthi) (Anil Choudhary) Member (Technical) Member (Judicial)

Sinha

1