C.P. Mota and Co. vs Commissioner of Customs (General)

Heard Mr. Masurkar, learned counsel appearing on behalf of the appellant. The appellant is in appeal challenging the order dated 7th May, 2012 of the Customs, Excise and Service Tax Appellate Tribunal, West Zone Bench at Mumbai in Appeal No. C/784/10. It is submitted that this appeal raises substantial questions of law and particularly as formulated in the memo of this appeal. The Tribunal has misdirected itself in holding that the appellant has sub-let his customs house agent license illegally and unauthorizedly in favour of one Dnyaneshwar. The said Dnyaneshwar was an employee of the appellant. When he was engaged and by an appointment letter, the terms and conditions of the appointment letter could not have been referred to for arriving at the conclusion of sub-letting. That for certain consignments which have been cleared by the said Dnyanesh Ganpat Bhoir, he was remunerated, does not take away the character or nature of the engagement viz. as an employee. In any event, the statements which have been relied upon i.e. that of Sunil Umesh Kapoor and Thakur Prasad Shukla are relied upon without making these persons available to the appellant for cross-examination. For these reasons, the appeal would raise a substantial question of law.

We are unable to accept any of these contentions and for more than one reason. This is not a pure and simple for the Court of Appeal which would permit the appellant to indulge in re-appreciation and re-appraisal of the factual materials before the Tribunal and equally before the Commissioner of Customs, Mumbai. Both have concurrently held that the version of the appellant that Dnyaneshwar was his employee has not been supported by Dnyaneshwar himself. The terms and conditions of the appointment letter have been perused in terms of the contract of Dnyaneshwar. He stated that he was not an employee, but worked on a commission basis. He had been paying Rs. 700/- per consignment to Chandrakant Popatlal Mota. It is in the statement of Dnyaneshwar that he handled import consignments of certain persons and contacted certain others. Therefore, apart from the statements of the persons referred to by Dnyaneshwar, Dnyaneshwar''s own version is not in consonance with the stand of the appellant before us. It is in this backdrop that the authorities called for the appointment letter and found the wording thereof as unusual and inconsistent with the contract of master and servant. The terms, inter alia, that Dnyaneshwar would be given an authority letter for handling documents on behalf of the clients of the appellant, both introduced by the firm and those introduced by Dnyaneshwar coupled with the fact that Dnyaneshwar was to be solely responsible for settlement of disputes with the statutory authorities, in-charge of and maintaining secrecy of the bank account goes to show that the contract was not of employment, but something else. The finding of fact that the license has been thus sublet to Dnyaneshwar is therefore, based on the materials produced and it cannot be said to be perverse in any manner. That is not a finding which can be said to be vitiated in law as well. For all these reasons, the appeal does not raise any substantial question of law. It is therefore dismissed.