TMI Blog2023 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... perverse or manifestly erroneous and/or is contrary to the law. The learned CESTAT conducted a meticulous exercise to examine and appreciate the evidence on the record and came to a categorical finding that the respondent/CHA was not guilty of non-performance of any of the statutory duties cast upon it. It is evidently brought out that there was a private arrangement between the two importers for which the respondent/CHA facilitated customs clearance in the name of companies, having valid IECs for the goods imported by the owners of the companies involved; and that the respondent/CHA had been duly authorized in this regard by Mr. Sidharth Sharma - There was proper verification on the part of the respondent/CHA with regard to genuineness of the IEC as also GSTIN [Goods and Services Tax Identification Number] and mere allegations that some other person was importing goods in the name of the importers, whose names were mentioned in the Bills of Entry, did not render the identity of the importer doubtful especially when there was apparently an arrangement with mutual consent of the importer and the beneficial owner and in the said circumstances there was no basis for the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case of the appellant further that during the course of investigation, statement of one Mr. Suresh Kumar Aggarwal, a partner of the respondent/CB/CHA was recorded on 15 January 2018 and 22 January 2018. In so far as the respondent is concerned it is alleged that the respondent had facilitated clearance work for certain imported goods on commission basis, without verifying the IECs numbers used for the imports and having due knowledge that the mastermind was Mr. Yusuf Pardawala, who was the real beneficiary or the beneficial owner. A SCN [Show Cause Notice] No. 13/2019 dated 22 May 2019 was issued to the respondent proposing that the clearance of imported goods at the Customs Ports by the respondent was in violation of various provisions of the Customs Broker License Regulations, 2018 [CBLR] . The SCN was eventually confirmed vide Order-in-Original No. 111/2019 dated 13 November 2019 on the grounds of violation of regulation 10(a), 10(d) and 10(n) of the CBLR, and consequently, the license of the respondent was revoked invoking powers under regulation 14 and 17(7) of the CBLR. Further, security deposit of Rs. one lac ten thousand made by the respondent was also forfeited and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment without any evidence of threat or coercion was not sustainable; and that the learned CESTAT failed to appreciate that the respondent/CHA was under the obligation to inform the department about misuse of the IECs being done by the importers and that it also overlooked that the evidence brought on the record clearly raised an inference that the respondent/CHA was in knowledge of the modus operandi being adopted by the importers regarding the undervaluation of the imported goods. In the alternative it is submitted that although there was no direct evidence so as to bring out connivance with regard to undervaluation on the part of the CHA, nonetheless CHA was liable to be prosecuted for imposition of penalty under Section 114AA of the Act. 8. On filing of the present appeal, advance notice was issued to the respondent/CHA and a short affidavit is filed by Mr. Suresh Kumar Aggarwal, partner of the firm and needless to state that the impugned order in so far as it determined issue No. 3 in its favour is supported. ANALYSIS AND DECISION: 9. Having heard the learned counsels for the parties and on perusal of the record, at the outset we find no merit in the present appeal. The reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. 10. A careful perusal of the aforesaid Section would show that an appeal lies to the High Court only when the impugned decision/order involves a substantial question of law . Suffice it to state that this Court cannot re-appreciate the evidence brought on the record in the proceedings conducted before the Adjudicating Authority as well the CESTAT and re-appreciate the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as have been imported by his companies, Shri Yusuf Pardawala was the beneficial importer but he simultaneously has accepted that the shipment of power tools has been imported in the name of his firm M/s. Maggie Marketing Pvt. Ltd. and that he was dealing with the beneficial importer for getting a 2% commission for allowing him to use the name of his firm i.e. M/s. Maggie Marketing Pvt. Ltd. There is no denial of the owner of the importing companies, Shri Sidharth Sharma that he had not authorized M/s. lCS Cargo, the CHA, to facilitate the clearance of the imports made by those companies. It is not the case of the department that the appellant failed to produce the said authorization to the competent officer. 8.1.2 We further observe that Shri Yusuf Pardawala in his statement has acknowledged that Shri Sidharth Sharma offered his companies for import of various goods of Shri Yusuf Pardawala on commission basis. Shri Yusuf Pardawala had assured Shri Sidharth Sharma to give him continuous work in the form of future shipments of power tools/grinding wheels on 2% commission basis. Thus it is clear that appellant/Customs Broker has facilitated customs clearance in the name of such compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Yusuf Pardawala. Hence, it appeared that the CB had failed to bring the matter to the notice of the DC/AC of Customs/ thereby violating Regulation 10(d) of CBLR/ 2018 (read with erstwhile Regulation 11(d) of CBLR, 2013). 8.2.2 As already observed and held above that appellant was assisting the import clearance for those firms only in whose names the goods were imported. The Director of those firms has admittedly authorized the appellant to file the Bills of Entry in the names of his firms and to assist the clearance of imported goods. Though Shri Sidharth Sharma stated that appellant used to receive documents with respect to the import of power tools directly from Shri Yusuf Pardawala prior filing the Bills of Entry for the same, however/ in the companies of Shri Sidharth Sharma and it has been relied upon by the adjudicating authority. But we observe that the cross-examination of Shri Sidharth Sharma and the statement of Shri Pankaj Singh has totally been ignored by the adjudicating authority. 8.2.3 Shri Sidharth Sharma, in his cross-examination dated 10.08.2019, has specifically stated that he used to send his staff along with the import documents to ICS Cargo after inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usuf Pardawal himself and on the basis of that bill of lading he as a freight forwarder used to get a delivery order issued from shipping line and thereafter the consignment used to be handed over to Suresh K. Aggrawal who as Customs Broker, used to file Bills of Entry for the respective consignments. This particular statement demolishes the entire case of the department that it was Customs Broker who had connived with Shri Yusuf Pardawala and Shri Sidharth Sharma to facilitate the import clearance in the name of the companies owned by Shri Sidharth Sharma but for Shri Yusuf Pardawala. 8.2.6 In the given circumstance, we do not find any reason with the appellant to be aware of the arrangement between Shri Sidharth Sharma and Shri Yusuf Pardawala and Shri Pankaj Singh and as such he had no reason to advice in this respect to the importer about provisions of the applicable acts, rules and regulations. Once nothing was to his notice there was no reason with the appellant to bring anything to the notice of the competent officer as was the requirement of regulation 10(d). Hence we hold that violation of 10(d) of CBLR, 2018 has wrongly been confirmed against the appellant. 15. In the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o declare the same to the competent authority. As such we do not find any violation of Regulation 10(n) of CBLR, 2018 by the appellant. 8.3.3 We further observe that there is no evidence on record to prove that the appellant had any personal or pecuniary interest in the impugned imports or that the imports were for any other personal benefit of the appellant. From the above discussion about the documents and information of the importer, it is crystal clear that the CHA herein had played his role diligently. The only allegation otherwise about the imported goods is that of under valuation thereof. Appellant is not a valuation expert and had played no role in the under valuation of the goods. To our opinion appellant acted purely on the basis of documents as that of invoice/purchase orders supplied by the importers. Sole allegation that the documents with respect to import of power tools were directly supplied by Shri Yusuf Pardawala to the appellant are highly insufficient to be a cogent evidence of alleged connivance of the appellant with either Shri Yusuf Pardawala or with Shri Sidharth Sharma or with both. Otherwise also, this allegation stand rebutted by the statement of Shri Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector of a freight forwarding company in the name of M/s. JMD Clearing and Forwarding Pvt. Ltd. The said deposition has been corroborated by Shri Pankaj Singh himself. We do not find any evidence on record to prove that transportation of the goods to the premises of Shri Yousuf Pardawala were facilitated by the appellant/CB. On the contrary, there is sufficient admission of Shri Sidharth Sharma, while being cross-examined; that he only used to arrange his vehicles for transporting the imported goods to respective places. Shri Sidharth Sharma has willingly provided his IEC on M/s. Maggie Marketing Pvt. Ltd. for use of imports to Shri Yusuf Pardawala and in fact, till the date of imports no remittances used to be sent by Shri Yusuf Pardawala to Shri Sidharth Sharma because Shri Yusuf Pardawala actually used to purchase those shipments on credit basis and used to make the payments of those imported goods in favour of M/s. Maggie Marketing Pvt. Ltd. of Shri Sidharth Sharma and it was thereafter that Shri Siddharth Sharma used to make the remittances for those shipments. Apparently and admittedly, no Bill of Entry has been filed by appellant in name of any company of Shri Yusuf Pardawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed, coupled with the fact that no Bill of Entry was filed by the respondent/CHA in the name of any company of Mr. Yusuf Pardawala, which task evidently had been handled by one Pankaj Singh @ Bunty, Director of a freight company in the name of JMD Clearing and Forwarding Private Limited. 18. In view of the foregoing discussion, we find that the learned CESTAT neither committed any patent illegality nor any manifest error in appreciating the evidence on the record. The instant appeal fails to raise any question of law. Hence, the present appeal is dismissed in limine. --------------------- Notes: 1. Regulation 16 vests powers with the Commissioner or Commissioner of Customs to suspend a license of a Custom Broker where an inquiry against such Custom Broker is pending or contemplated. 2. Regulation 17 provides the procedure for revoking license or imposing penalty including issuance of Show Cause Notice, hearing, recording of evidence and final decision in a time bound manner. 3. Explanation to Regulation 17 of CBLR defined offence report as follows: Offence report for the purposes of this regulation means a summary of investigation and prima facie framing of charges into the al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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