TMI Blog2014 (10) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... tend to day to day work but exercise only supervision. In the statement there is no indication and no clarification has been asked as to what kind of supervision he exercised over his staff and how he tried to ensure that they did not do any mischief. It has to be taken note that in this case the concerned clerk had been given an ‘H’ Card and therefore it cannot be said that he was totally an unauthorized person or unknown person or unqualified person for this purpose. Unfortunately department has not proved this by investigating the issue by looking on this issue from a different angle. What emerges is the fact that overall the supervision over the work of Shri. Saravanan was not very strict and generally he was given a free hand. Therefore we find that in this case it cannot be definitely said that the CHA has performed to the levels accepted by him. At the same time whether the broker licence should be suspended and revoked on these grounds is a question with which we are not able to agree with the Commissioner totally. Probably in this case the punishment is too harsh - order of revocation of licence of the customs broker is set aside and the Commissioner is directed to iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Commissioner for revoking the licence. The first ground taken is that the appellant has not fulfilled the requirements in CBLR 2013 regarding the obligations cast on him under Regulation 11(n) of CBLR. According to Regulation 11, the customs broker has to verify the antecedent, correctness of IE Code, identity of the client and functioning of the client at the declared address by using reliable, independent, authentic documents, data or information. He submits that in this case, it was found during investigation that there were about 300 consignments imported by M/s. V.J. Enterprises. He submits that there is no dispute that V.J. Enterprises exists; it has an IE Code; the Director Shri. Vijayakumar exists; he placed the order on Hong Kong supplier indicating the address and Hong Kong supplier in turn raised invoice in the name of M/s. V.J. Enterprises; M/s. V.J. Enterprises filed the bill of entry; Shri. Vijaykumar signed the bill of entry and declares; V.J. Enterprises in turn received the price paid by them for the goods plus 4% commission of the net profit earned as a result of trading of the goods imported from one Shri. Ganeshan. Departments case is that, Shri. Ganeshan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or import formalities such as appointing CHA for Customs clearance etc. In his statement dated 30.01.2013, Shri. Ganeshan has agreed that he used to pay 4% of net profit to Shri. Vijayakumar in return for using his name and IEC code. It is also admitted that all imports made by him using the name of M/s. V.J. Enterprises were cleared by using the services of clearing agent M/s. Accurate Clearing and Shipping Agency, Chennai. It is further revealed that the CHA was paid an amount of ₹ 2000/- per Bill of Entry through Shri. Shanthakumar, who had introduced him to be said CHA. Shri. A. Shanthakumar, in his statement dated 4.2.2013, has admitted that he introduced Shri. Ganeshan to Shri. Saravanan of M/s Accurate Clearing Agency. Further Shri. Ganeshan used to give ₹ 2000/- towards clearing out of which he used to pay ₹ 1500/- to Shri. Saravanan towards CHA service charges and he used to retain ₹ 500/- as his own commission. Shri. Saravanan used to give him a receipt for ₹ 250/- towards service charges and he used to handover these receipts to Shri. Ganeshan. It is also admitted by Shri. Shanthakumar that about 300 bills in the name of M/s. V.J. Enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o go on investigating as to why a person has filed so many bills of entry and what are the goods coming and what is happening. This is the job of investigating agencies which are engaged in this work in custom house as well as in DRI. No doubt because of their role only these facts have come out. Under these circumstances, it will be difficult to sustain the stand that the offence is so grave that licence of the broker cannot be continued to undertake this activity further. However we find that a little more control on the part of the custom house agent, a little more control over Shri. Saravanan would have probably brought the situation to his notice and this may not have happened. We are making these observations in view of the peculiar circumstance in this case wherein it has been brought out that Shri. Ganeshan paid ₹ 2000/- to Shri. Shanthakumar who paid ₹ 1500/- to the employee of the appellant who in turn give a receipt for only ₹ 250/- to Shri. Shanthakumar. From the method of transaction what emerges is probably the proprietor appellant got only ₹ 250/- for each bill of entry and acceptance of such a small remuneration can lead to a doubt or can lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is the fact that overall the supervision over the work of Shri. Saravanan was not very strict and generally he was given a free hand. Therefore we find that in this case it cannot be definitely said that the CHA has performed to the levels accepted by him. At the same time whether the broker licence should be suspended and revoked on these grounds is a question with which we are not able to agree with the Commissioner totally. Probably in this case the punishment is too harsh. 4. In view of the above observations, we consider that more than 8 months of suspension of activities and lack of work for the appellant is sufficient as a punishment and in addition the punishment imposed by way of forfeiture of security and imposition of penalty also in our opinion would meet the ends of justice. Therefore we consider it appropriate that the order of the Commissioner should be modified. 5. In view of the above observations, the order of revocation of licence of the customs broker is set aside and the Commissioner is directed to issue the licence afresh. It is made clear that the order imposing penalty of ₹ 50,000/- and forfeiting the security already deposited by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
