TMI Blog2023 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... ross examination, in the face of the said statement of the appellant, cannot be a violation. It is also interesting to note that other than the appellant, none of the others investigated in this offence have retracted their statements. The Delhi High Court in the case of Jasjeet Singh Marwaha [ 2009 (2) TMI 57 - DELHI HIGH COURT] has held that the CHA can be held responsible for the violation of the Customs Act, and not only the violation of CHALR (now referred to as CBLR). The appellant was aware that the IEC of Shubham Garg of M/s Navrang Jewel and Export was being used by Salim Dola for export of Gutka, which is a prohibited item. It has to be concluded that the appellant was very much aware of the nature of the consignment and aware of the fact that the IEC did not belong to the actual exporter of the consignment. He had indulged in this offence for monetary gains. There are no reason to interfere with the findings in the impugned order. The appeal is accordingly dismissed. - HON BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) And HON BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Ms. Reena Rawat Shri Rajat Mishra , Advocates for the Appellant Shri Rakesh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar statement was given by appellant on 08.08.2017. 4. Upon completion of inquiry, DRI issued a show cause notice on 05.02.2018 proposing penal action against the appellant. Taking into account the said show cause notice of DRI to be an offence report, Commissioner (Airport General) suspended the licence of the appellant and issued a show cause notice on 08.10.2018 proposing to hold the appellant responsible for contravention of various provisions under Regulation 10 of Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as CBLR, 2013) and revocation of their Customs Broker (C.B.) licence, forfeiture of security and penalty under Regulation 18 of CBLR, 2013. An Inquiry Officer was appointed to enquire into the matter. The appellant vide his letter dated 17.12.2017 requested the Inquiry Officer for cross examination of certain persons relying upon whose statements, the appellant was implicated in the matter. However, the said request of the appellant was not acceded to by the Inquiry Officer. A detailed reply to the show cause notice was filed negating all the charges levelled against the appellant, but the impugned order dated 26.03.2019 was passed based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He stated that the appellant had obtained an authorization from the exporter and had therefore not contravened the provisions of Regulation 10(a) of CBLR, 2018 (erstwhile 11(a) of CBLR, 2013). He added that the appellant had advised the exporter to comply with the provision of the Customs Act, 1962. In his statement dated 06.08.2018, the appellant had in unequivocal terms, stated that at the time of filing the Shipping Bill, that he had no knowledge about the presence of Gutkha in the export consignment. He was informed by the exporter and Shri Mehmood that goods being exported were Pan Masala. In this context, he relied on the judgment in Dominic Co. (supra), wherein CESTAT has held that as no discrepancy found in the documents filed, so question of advice does not arise . In view of aforesaid, appellant had advised his client to comply with the provisions of the Act and had not contravened the provision of Regulation 10(d) of CBLR, 2018 (erstwhile 11(d) of CBLR, 2013). 7. The learned Counsel submitted that the appellant s statement dated 15.12.2017 was obtained by the DRI by force which had been duly retracted. Further, the appellant had no prior knowledge as to presence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of aforesaid appellant had verified the antecedents of the exporter and, therefore, had not contravened the provisions of Regulation 10(n) of CBLR, 2018 (erstwhile 11(n) of CBLR, 2013). The Ld Counsel submitted that since the beginning of his business of customs clearance in 2012, the appellant had never been issued show cause notice on account of any violation of any provisions of Customs Act, 1962. Therefore, the revocation of the CB license was very harsh punishment. 8. The learned authorised representative submitted that the appellant had not followed the requirements as per Clause 10(a) of CBLR, 2018. He stated that the fabricated documents were prepared in the office of the F card holder. It is on record that Sh. Shubham Garg had sublet his IEC for monetary consideration and the Customs broker was aware of the same. The appellant failed to inform the customs authorities about this and had contravened the provisions of CBLR. Such wilful omission on part of the F card holder to verify the authenticity having a prior knowledge of verifying the genuineness of the importer/exporter, address, identity proves beyond doubt the circumstantial evidence of the connivance of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority has clearly held that the confessional statements of the appellant clearly indicate that he was aware that actual exporter was Shri Salim Dola whereas the IEC being used was in the name of Shri Shubham Garg, proprietor of Navrang Jewel and Exports. Sh. Garg in his statement accepted that he had allowed Mehmood, alias Guddu to use his IEC for ₹50,000 per consignment. Mehmood, alias Guddu in his statement also accepted that Sh Salim Dola had offered him rupees one lakh to export viz., Shubham Garg, Mehmood alias Guddu, Salim Ismail Dola, Shri Jaibir etc. Vimal Gutka to Kuwait. In order to complete the customs formalities, he contacted the appellant for the same. Therefore, the obligation of obtaining the authorisation from the actual exporter was not discharged by the appellant. This is corroborated by the statements of others involved in this smuggling endeavour. Thus there is sufficient corroboration to the confessional statement of the appellant. Therefore mere retraction of his statement cannot negate the action of the appellant. Otherwise also, the confessional statement was recorded by the Custom officer which is different from the police office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rented premises of Kanjhawala, Delhi under the supervision of Jaibir, Mehmood alias Guddu, himself and one representative of the CHA. This clearly establishes that the appellant was fully aware of the contents of the container. He was also aware that there was no factory/godown stuffing permission accorded to this unit. It is also established that the invoice and the packing list were prepared in the appellant s office. Shri Shubham Garg in his statement dated 08.09.2017 has categorically stated that he had never authorised any person to sign and submit on his behalf the invoice cum packing list no. NJE/EXP/17-18/001 and the same had been fabricated by Mehmood alias Guddu and the appellant. The contention of the learned counsel that the appellant had duly verified the correctness of the IEC and other KYC documents is negated by the statement of the appellant himself. The appellant has stated that the customs clearance work of Navrang Jewel and Export was received through a forwarding firm Atlas, Noida and Mr Mehmud and Shubham Garg. The KYC documents of Navrang Jewel and Export were provided by Shri Garg but the dealing was done by Mehmood who advised the appellant to file free S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery important person in the transactions in the custom House and it is appointed as an accredited broker as per the regulations and is expected to discharge all its responsibilities under them. Violations even without intent are sufficient to take action against the appellant. While it is true, as has been decided on a number of cases, that the customs broker is not expected to do the impossible and is not expected to physically verify the premises of the importer or doughty documents issued by various governmental authorities for KYC, it is equally true that the Customs Broker is expected to act with great sense of responsibility and take care of the interests of both the client and the Revenue. It is expected to advise the client to follow the laws and the client is not complying, it is obligated under the regulations to report to the Asst Commissioner of the Deputy Commissioner. Fulfilling such obligations is a necessary condition for the CB license and cannot be termed as spying for the Department‟ as argued by the appellant before us. It has also been argued that if it spies for the department, it will lose its business. It is evident from the facts of this case that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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