COMMISSIONER OF C. EX. Vs. THAKKAR SHIPPING AGENCY

JUDGEMENT

(1.) THIS is an appeal filed by the Revenue against Order -in -Original No. 27/2004, dated 21 -7 -2004 passed by Commissioner of Customs (General), Mumbai. Vide the impugned order, the learned Commissioner had dropped the proceedings initiated against the CHA, M/s. Thakkar Shipping Agency, by rejecting the findings of the inquiry officer. The brief facts relating to the case are as follows. An inquiry was initiated against M/s. Thakkar Shipping Agency (CHA No. 11/1065) with regard to their involvement in evasion of Customs duty on the import of electrical and electronic goods of foreign origin. The investigation revealed that the said CHA had filed Bill of Entry in respect of container No. TTNU -984418 -7 and in the said Bill of Entry, the CHA failed to give factual description, brand and country of origin. Further, the value of goods were declared at Rs. 10,03,690/ - whereas on physical verification, the value was found to be Rs. 77,10,000/ -. The CHA had admitted to attending the clearance work in respect of the said consignment and also admitted to introducing the importer Shri Riyazuddin Qureshi to the overseas suppliers and bankers for financial assistance. He had also admitted to mis -declaring the value. Accordingly, a charge sheet was issued to the appellant CHA under CHALR, 1984, alleging contravention of Regulation 14(d) of CHALR, 1984, inasmuch as he was aware of the under -valuation of the goods under import and had knowingly declared a false value in connivance with the importer attempting to evade Customs duty, contravention of Regulation 14(e) was alleged, inasmuch as the CHA failed to declare the model, make, specification and the country of origin of the electronic goods under import. Violation of Regulation 14(f) was alleged inasmuch as the CHA withheld information from the Customs. It was further alleged that the CHA contravened the Regulations 14(1) and 14(o), inasmuch as he failed to comply with the submission of required documents and in due discharge of duty as CHA. The inquiry conducted held that the charge against CHA in respect of contravention of Regulation 14(d), 14(f) and 14(i) are sustainable and were held to be proved. However, the adjudicating authority observed that the proceedings against CHA had been initiated solely on account of alleged involvement in the clearance of one container in 2001 and except for the initial statement of the importer against the CHA, no other evidence is available. Accordingly, he dropped the proceedings initiated against the CHA for revocation of the CHA licence. In their appeal memorandum, the Revenue has urged that the Commissioner had overlooked the statement of Shri Vijay Thakkar, Proprietor of the CHA firm wherein he had admitted to mis -declaration of the goods under import in connivance with the importer. Though the said statement was retracted subsequently, since there is corroboration in the physical examination of the goods which showed that there was mis -declaration of value. Therefore, the initial confessional statement ought to have been considered and the CHA should have been held guilty of the charges of contravention of Regulations 14(d), 14(f) and 14(i) of the CHALR, 1984.

(2.) THE learned Deputy Commissioner (AR) appearing for the Revenue reiterated the grounds urged in the appeal memorandum.

(3.) 1 We find that CHALR, 1984, did not provide for filing of an appeal by the department against an order passed by the Commissioner under the said Regulations. Only a CHA aggrieved by any decision or order could appeal to the Tribunal in terms of sub -regulation (8) of Regulation 23. Section 129D under which the present appeal has been filed enables the Committee of Chief Commissioners to file an appeal against an order passed by the Commissioner under the Customs Act. It does not provide for filing of an appeal in respect of orders passed under the CHALR. Further, Section 129A of the Customs Act provides that only a decision or order passed by the Commissioner of Customs as an adjudicating authority is appealable before the Tribunal. This would imply that only when the Commissioner of Customs adjudges duty, interest, fine or penalty, an appeal against the said order would lie before the Tribunal. Revocation of a CHA licence or dropping of proceedings under CHALR cannot be said to be an order passed by the Commissioner as an adjudicating authority. Therefore, in the absence of a specific provision in the CHALR, 1984, enabling the department to file an appeal against the order passed by the Commissioner under the said Regulations, the appeal is not maintainable before this Tribunal. Accordingly, we dismiss the appeal filed by the Revenue as not maintainable.