JUDGMENT
Archana Wadhwa
1. Vide the impugned Order, the Commissioner of Customs (Port), Calcutta has confiscated a consignment of export declared as Ladies Garments, but found to contain rags. Penalties have also been imposed upon various persons including the present appellants. Except the present appellants, the exporters or the other notices have not filed the appels. As such, the present five appeals are being disposed of by a common Order.
2. The penalties imposed upon the above appellants are as follows:-
a) Shri Nitin Kapoor Rs.2.00 lakh; b) M/s. Shweta International Rs.1.00 lakh; c) Shri Ujjal Goon Rs.50,000.00; d) M/s. Landing & Shipping Agency Rs.1.00 lakh; e) Shri Ashis Kumar Mukherjee Rs.50,000.00; 3. We have heard the submissions made by the Counsels appearing for M/s. Landing & Shipping Agency and M/s. Shweta International and the Properties of the same. Shri Nitin Kapoor has made a prayer for consideration of his case on merits. 4. We have also heard Shri V.K.Chaturvedi, learned S.D.R. for the Revenue.
5. Briefly stated the facts of the case are that one M/s. Akanksha Overseas, New Delhi filed five Shipping Bills on 30.1.99 declaring the contents as Ladies Ready-made Garments and Ladies Skirts under Drawback Claim and declared the value of the same as Rs.76,41,000.00(Rupees seventy-six lakh forty-one thousand). On physical examination of all the consignments, the same were found to be old rags and the total value was ascertained as Rs.5,750.00(Rupees five thousand seven hundred fifty). As a result, further investigations were conducted and the statements of various persons were recorded. During investigations, statement of Shri Nitin Kapoor, partner of M/s. Akanksha Overseas was also recorded, who deposed that he was a student of B.Com. and his father was looking after the work of the said export firm. However, since his father was not well for the last two months, he was looking after the firm. He was misguided by some unscrupulous friends under allurement and under the guidance of his contact, Pappu Jha of M/s. Jha Shipping Agency, he camouflaged the old and torn garments with gross over-valuation to claim duty drawback. To the similar effect, was the statement of the father of Shri Nitin Kapoor who prayed for a lenient view regarding the misdeeds of his son. Shri Pappu Jha could not be contacted by the Customs as he went underground.
6. On the above facts, show cause notices were issued to all the appellants which resulted in culmination of the impugned Order.
7. It is seen that only a penalty of Rs.2.00 lakh(Rupees two lakh) has been imposed on Shri Nitin Kapoor who has admitted him guilt. The fact that Shri Nitin Kapoor was a student of 21 years old, has already been considered by the adjudicating authority when he imposed a penalty of Rs.2.00 lakh(Rupees two lakh) only as against the Duty Drawback Claim of Rs.13,75,380.00(Rupees thirteen lakh seventy-five thousand three hundred eighty) which the appellants would have been able to procure by over-invoicing the goods to the tune of Rs.76.41 lakh(Rupees seventy-six lakh forty-one thousand), if the consignment would not have been intercepted by the Customs. There is no doubt that Shri Nitin Kapoor was (sic) in manipulating the export value of the shipping document in order to claim non-admissible duty drawback. As such, we do not find any merits in the prayer made by Shri Nitin Kapoor for setting aside the personal penalty of Rs.2.00 lakh(Rupees two lakh) upon him.
8. As regards the imposition of personal penalty of Rs.1.00 lakh(Rupees one lakh) on M/s. Shweta International and of Rs.50,000.00(Rupees fifty thousand) on Shri Ujjal Goon, Proprietor of the said firm, it is seen that the said appellants are only cargo handlers. The appellants have contended that they were in no way concerned with the mis-declaration of the goods. They were simply doing their job as cargo handlers. We find that the Commissioner has imposed the penalties upon them by observing that Shri Ujjal Goon was present at the time of examination of the goods and as soon as the examination was over, he disappeared. Shri Ujjal Goon in his deposition before the Customs Officers had stated that he had deposition before the Customs Officers had stated that he had no prior knowledge that the goods were misdeclared and he had acted in good faith. Merely because he was present at the time of examination of the goods and was a witness to the fact that the goods were old and used rags and not new Ladies Garments cannot act prejudice to his interest. In fact, we find that Shri Nitin Kapoor in his various statements has nowhere named Shri Ujjal Goon as an accomplice. We also find force in the appellants’ submission that separate penalties cannot be imposed on a Proprietary Concern and its Proprietor. Accordingly, in view of the fact that there is no clear finding and evidence in the impugned Order about the involvement of Shri Goon with the misdeclaration of the goods, we set aside the imposition of personal penalties upon M/s. Shweta International as also upon Shri Ujjal Goon.
9. As regards M/s. Landing and Shipping Agency, it is seen that they are the Clearing Agents. The Commissioner has observed that they had lent their name to Shri Pappu Jha who was the actual proprietor of M/s. Jha Shipping Agency, a suspended licensee. He has, further, observed that his was not permissible under C.H.A. Regulations. As such, M/s. Landing and Shipping Agency were guilty of dereliction of duty. As such, he has imposed penalty upon M/s. Landing and Shipping Agency along with imposition of penalty on Shri Ashis Kumar Mukherjee, Proprietor. The appellants have argued that the findings of the adjudicating authority are for contravention of C.H.A. Regulations for which separate proceedings have been initiated against them. Merely because they procured the business of M/s. Jha Shipping Agency, does not establish their involvement in the misdeclaration of the goods and their value. We agree with the said submission of the appellants. The Commissioner has not referred to any evidence or given a clear finding that the appellants were a party to the fraud plan enacted by M/s. Akanksha Overseas. As such, we set aside the imposition of penalty on M/s. Landing and Shipping Agency and its Proprietor, Shri Ashis Kumar Mukherjee.
Appeals are disposed of in the above terms.
(Pronounced in the Court)