Marshall Machado vs Commissioner Of Customs(Export), ...

(Arising out Order-in-Original No. CAO CC(PMS)/22/2007 ADJ.ACC dated 31.12.2007 passed by the Commissioner of Customs(Exp), Mumbai )

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. 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 No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy Yes of the Order?

4. Whether Order is to be circulated to the Departmental Yes authorities?

Marshall Machado Appellant

Vs.

Commissioner of Customs(Export), Mumbai Respondent

Appearance:

Shri Anil Balani, Advocate for the appellant Shri S.J. Shahu, AC (AR) for the respondent

CORAM:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 26/06/2015 Date of decision : 26/06/2015

O R D E R No:..

Per: M.V. Ravindran:

This appeal is directed against Order-in-Original No. CAO CC(PMS)/22/2007 ADJ.ACC dated 31.12.2007.

2. Heard both sides and perused the records.

3. The appellant has filed this appeal against the impugned order, which imposed a penalty of Rupees One lakh on him under the provisions of Section 114 (iii) of the Customs Act, 1962.

4. Learned Counsel for appellant brings to our notice the facts of the case and submits that the penalty imposed is incorrect. He would draw our attention to the findings recorded by the adjudicating authority. He would submit that the findings recorded by the adjudicating authority has no basis and there is nothing on record to implicate the appellant in any manner which attracts penal provisions of the Customs Act, 1962. He would then draw our attention to the statements recorded by the authorities of appellant by the Customs authorities.

5. Learned departmental representative would reiterate the findings recorded by the adjudicating authority.

6. On consideration of the submissions made by both sides and perusal of records, we find that the impugned order imposing penalty on the appellant herein is incorrect for more than one reason. Firstly, the synopsis statements recorded of the appellant (as recorded at paragraph number 10 and 11 of the impugned order) clearly indicates that the appellant had denied that they had any role in filing incorrect shipping bills. It is also recorded that the appellant herein specifically stated that the shipping bills which were shown having signature of the person signing on behalf of appellant CHA as none of their employees and that as per registers maintained by them, do not indicate that they had undertaken any work of filing shipping bills of M/s Manna Enterprises. Secondly, we find that none of the co-noticees or for that matter there is nothing on record to remotely connect the appellant with the actions of main Noticee. In absence of any evidence that the appellant herein had filed any incorrect shipping bills, visiting the appellant herein with penalty seems to be incorrect. Thirdly, the adjudicating authority has recorded the following findings.

Shri Marshal Machado, Director of M/s. A.R. Marines P. Ltd. (CHA 11/838) (formerly known as M/s. A.R. Michael) in show name 8 shipping bills were filed and shipment was made in the name of M/s. Manna Enterprises appeared to have connived in the export of scrap by declaring these as cobalt bearing high speed gear cutters with the active help of Mr. Sushil Dhuri an employee of M/s. A.R. Marines P. Ltd.who was holding the pass issued by M/s. A.R. Marines and has also signed the shipping bills on behalf of M/s. A.R. Michael.

30. There is no force in the contention of M/s. A.R. Marines P. Ltd. and its director Shri Marshal Machado that they are in no way concerned with the export of these goods. This act on the part of M/s. A.R. Marines P. Ltd. is in violation under Regulation of the Custom House Agents Licensing Regulations, 1984 (CHALR, 1984) for not meeting the obligations of the custom house agent. M/s. A.R. Marines P. Ltd. and its director Shri Marshal Machado are responsible for the acts of omission and commission of their employee under Regulation 20(7) of CHALR, 1984 therefore rendered themselves liable for penal action under Section 114(iii) of Customs Act, 1962.

7. On perusal of the records, we find that the above findings as recorded by the adjudicating authority are not substantiated in anyway. We find that there is no statement implicating the appellant nor it is brought on record that Shri Sushil Dhuri is one of the employees of the appellant. In the absence of any other evidence to implicate the appellant herein, the penalty imposed on him is not in consonance with the law.

8. In view of the foregoing, and in the facts and circumstances of this case, the findings of the adjudicating authority to the extent it is contested in this appeal is liable to be set aside and we do so. Impugned order to the extent it records findings on the appellant herein, is set aside and the appeal is allowed to that extent.

(Operative part pronounced in Court)

(P.S. Pruthi) (M.V. Ravindran) Member (Technical) Member (Judicial)

//SR

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