Shri. Ashis Kumar Bose vs Commissioner Of Customs (Prev.) Kol

(ARISING OUT OF ORDER-IN-Original NO. 23/CUS/CC(P)/WB/2007 Dated 25.10.2007 passed by Commissioner of Customs (prev.), Kolkata.)

FOR APPROVAL AND SIGNATURES OF

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

1. Whether Press Reporters may be allowed to see : 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 : 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 Departmental : Authorities?

Shri. Ashis Kumar Bose APPLICANT(S) VERSUS COMMISSIONER OF Customs (prev.) Kol-1 ...RESPONDENT (S)

APPEARANCE:

SHRI Arijit Chakraborty, ADVOCATE FOR THE APPELLANTS

SHRI S.P.Pal, Appraiser (AR) FOR THE REVENUE.

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER

Date of Hearing: 18.09.2015 Date of Decision:

ORDER NO.FO/A/75558/15

Per Shri H.K.Thakur

Appellant Sh. Ashis Kumar Bose filed this appeal against OIO No. 23/CUS/CC(P)/WB/2007 dt 25/10/2007 passed by CC(P), Kolkata. Under this OIO Adjudicating authority imposed a penalty of Rs. 1 Lac upon the appellant under Sec 112 of the Customs Act 1962 and also revoked the identify card No. 113/CA/LIC of the appellant by a Common order No-A-317-318/KOL/2010 dt 01/04/2010 appeal filed by the appellant was rejected by this bench. Appellant took this order to the Honble Kolkata High court and by order dt 11/05/2015 in GA No. 3282 of 2010 / CUSTA 10 of 2010 High court remanded the matter to this bench and also ordered to the Customs authority to provide a compensation of Rs. 5 lakhs to the appellant.

2.Sh. Arijit Chakraborty (Advocate) appearing on behalf of the appellant in remand proceedings argued that appellant filed a Bill of entry No. 2592 dt 10/07/2006 as Sirkar on behalf of M/S. S.B. international and produced a forged test certificate dt 17/07/2006 from Director of central Food laboratory (CFL) and got the bill of entry assessed & imported goods cleared on 18/07/2006. That a subsequent certificate from CFL was received by the department which conveyed that certificate produced earlier was fake & forged. That another B/E No. 2697 dt 21/07/2006 was filed by the appellant on behalf of M/s. S.B. international without filing any IGM & Sample of the imported goods were also drawn by the appellant without the presence of customs officer. Learned Advocate argued that appellant assisted Sh. Apruba Roy , a sirkar of M/s. S.B. International and that at the instance of Mr. Roy he wrote the entries in the Register as per practice followed in the land customs station. That the act of the appellant was bonafide & no penalty under see 112 of the customs Act 1962 is imposable. So for as revocation of appellants Identity card is concerned Learned Advocate argued that there is no provision in the Customs Act to revoke the Identity card of the appellant and that Adjudicating authority was also not the officer who issued such card. It was further argued that there was not even a whisper in the show cause notice to revoke the identity card of the appellant.

3.Sh. S.P Pal. Appraiser , (AR) appearing on behalf of the Revenue argued that appellant was an employee of M/s. Lee & Muirhead Pvt Ltd and Sh. Swapan Kumar Biswas, Deputy manager of M/s. Lee Muirhead, in his statement dt 02.08.2006 confirmed the handwriting of the appellant in the Registers. That Sh. Biswas further stated that he has not authorized the appellant to make enteries on behalf of another CHA. Learned AR thus strongly defended the order passed by the adjudicating authority and argued that appellant has violated the provisions of sec 132 & 146 of the customs Act 1962 by not filing IGM and also drawing a sample without the presence of custom officer. That appellant also forged the report of CFL and unathorisedly made entries in the Registers.

4.Heard both sides & perused the case records. The issue involved in these proceedings is whether penalty of Rs. 1 lakh has been correctly imposed upon the appellant. Under Sec 112 of the Customs Act 1962 and whether Identity card of the appellant has been correctly revoked by the Adjudicating authority.

4.1 So for imposition of penalty upon the appellant is concerned , it is observed from the case records that he was not authorized by his employee M/s. Lee & Muirhead Pvt Ltd to make entries in the registers on behalf of another CHA. Appellant not only produced a forged test report from CFL but also filed a bill of entry No. 2697 dt 21/07/2006 without filing of IGM. These facts and contraventions have been clearly reflected in Para- 25 of the show cause notice dt 16/10/2006 issued to the appellant. Adjudicating authority has further made following categorical findings in his discussion & findings.

 Sri Ashis Kumar Bose filed Bill of Entry No. 2592 dated 10/07/2006 as SirKar on behalf of M/s. /S.B. International for clearance of betel nuts and produced a forged test certificate no. G-14-8/2006-1385 dated 17/7/2006 against Test Memo No. 433/06 dated 13-07-2006 as digned by Dr. Satya Prakash, Director of Central Food Laboratory and got the bill of entry assessed and the goods cleared on 18-07-under signature of Sri J. Chakaraborty, Director of CFL, which made clear that the test certificate produced for assessment of bill of entry was fake and forged with signature of Director, Dr. Satya Prakash. The another bill of entry no 2697 dated 21-07-2006 was also tendered by Sri Ashis Kumar Bose unauthorisedly on behalf of the CHA, M/s. S.B. international for importation of 30 MTS betel nuts from Bangladesh without filing any IGM and sample was drawn without presence of Custom Officer and sent to CFL, Kolkata under Test Memo No. 444/2006 dated 22-07-2006 upon unauthorized transshipment of consignment into Indian territory. Upon admission of his above acts and guilt in a statement dated 27/07/2007 Sri. Ashis Kumar Bose was arrested on 27/07/2006 and was remanded by AddI C.J.M.

Bongaon to judicial custody and later was released on bail on 21/08/2006 with direction to report to the investigating officer. Sri Bose further confirmed his earlier Admissions in his statement dated 18/09/2006. Sri Ashis Bose later denied allegations against him in his reply dated 21/11/2006 to the S.C.N. and confirmed that he is an employee of M/s. Lee and Muirhead private Limited but assisted Sri Apurba Roy, a Sircar of M/s. S.B. International and at Mr. Roys instance he wrote the entries in the Register as per the practice followed in the LCS. So asked for no penal action be taken against him under Customs Act62. I find that Sri Swapan Kumar Biswas, Deputy Manager of M/s. Lee and Muirhead Pvt. Ltd. In his statement dated 02/08/2006 have confirmed the handwritings in the Registers are of their employee Sri Ashis Kr. Bose against the said Bills of Entry, who further submitted that Sri Bose was not authorized to make such entries on behalf of another CHA. Sri Snehasish Biswas, Partner of M/s. S.B. International, CHA have also confirmed that Sri Ashis Kr. Bose was working occasionally at the instance of his licensed Sircar Sri Apuraba Roy.

Sri Ashis Bose in his personal hearing on 29-05-2007 has taken plea that the Test Memo no. 444 dated 22/07/2006 was written in the hand of Sri Apurba Roy of M/s. S.B. International and not by him.

I do not final any force in the contentions of Sri Ashis Bose made in his submissions that he worked for Sri Apuaba Roy on humanitarian ground. It is his willful act in violation of Section 30, 132 & 146 of the Customs Act62. Thus, I am of the opinion that Sri Ashis Bose had submitted Bill of Entry no. 2592 dated 10/07/2006 without any authorization and intentionally by producing the forged CFL examination report dated 17.07.2006 he misled the Customs assessment. Thus he is accused of violating the duties and responsibilities (i) under Section 146 of Customs Act, 1962 and (ii) under the provisions of Section 132 of Customs Act, 1962. In another case Sri Bose submitted bill of Entry No. 2697 dated 21.07.2006 unauthorisedly without any import manifest and got the samples drawn without presence of Custom Officer upon transshipment and unauthorized loading on Indian trucks.

4.2 in view of the above observations we find no reason to interfere with the imposition of penalty Rs 1 lakh upon the appellant ordered by the Adjudicating authority under Sec 112 of the Customs Act 1962 and the same is upheld.

5. So for as revocation of appellants identity card No, 113/CA/LC is concerned , it has been rightly argued by the Learned Advocate that no show cause notice has been issued by the appropriate authority issuing such card, to revoke the card. On verification of the show cause notice dt 16/10/2006, issued interalia, to the appellant we find it so. It is also observed that there is no provision in the Customs Act 1962 to revoke an identity card issued to the appellant. Accordingly we hold Adjudicating Authority was not justified in revoking the Identity card of the appellant for which no show cause notice was issued. Order passed by the Adjudication authority regarding revoking Identity card No. 113/CA/LC is set aside & accordingly appeal filed by the appellant is required to be allowed to that extent.

6. In view of the above observations appeal filed by the appellant is allowed only to the extend indicated in para - 5 above.

(Operative part of the order was pronounced in the open Court.)

(D.M.MISRA) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER

Tushar kumar