2025 (6) TMI 1104 - AT - Customs

Revocation of CB License issued to the appellant under Regulation 14 read with Regulation 17 of Customs Brokers Licensing Regulations 2018 - levy of penalty under Regulation 18(1) of CBLR 2018 - export by mis-declaration of red sanders - illegal export - violation of Regulation 10(a) (d) (e) (f) (m) (n) and 13(2) of CBLR 2018 - opportunity of cross examination not provided during the adjudication proceedings before the adjudicating authority - violation of principles of natural justice - HELD THAT - SCN was issued within prescribed period but the department has not approved for cross-examination and the reason given by learned Commissioner is not reasonable and sustainable. Therefore we are in definite opinion that matter should be remanded to the Adjudicating Authority to decide after giving proper opportunity of cross-examination. The appeals are disposed of by way of remand to the learned Commissioner to decide the matter afresh after giving proper opportunity to both the parties.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the Show Cause Notice (SCN) issued to the appellant was within the statutory time limit of 90 days from the date of receipt of the offence report as prescribed under Regulation 17(1) of Customs Brokers Licensing Regulations, 2018 (CBLR, 2018).

- Whether the appellant was responsible for the filing and clearance of the shipping bills related to the alleged illegal export of red sanders, despite the appellant's contention that other Customs House Agents (CHAs) filed those shipping bills.

- Whether the appellant was denied the opportunity for cross-examination of witnesses whose statements formed the basis of the SCN and adjudication proceedings, thereby violating the principles of natural justice under Regulation 17(4) of CBLR, 2018.

- Whether the adjudicating authority's revocation of the Customs Broker (CB) License and imposition of penalties were justified on the facts and law.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Timeliness of the Show Cause Notice

Legal Framework and Precedents: Regulation 17(1) of CBLR, 2018 mandates that the Principal Commissioner or Commissioner of Customs shall issue a notice in writing to the Customs Broker within 90 days from the date of receipt of an offence report. The time limit is mandatory, not directory, as established by multiple High Court decisions including those of Madras and Delhi High Courts. Cases cited include M/s A.M. Ahamed & Co., M/s Leo Cargo Services, M/s KTR Logistics Solutions Pvt Ltd, Indair Carrier Pvt Ltd, CC (General) Vs SK Logistics, and CC, Tuticorin Vs MKS Shipping Agencies Pvt Ltd, all emphasizing strict adherence to the 90-day period.

Court's Interpretation and Reasoning: The appellant contended that the offence report was dated 19.08.2022 and thus the SCN issued on 03.04.2023 was beyond the 90-day limit. The Court examined the communication trail and found that the letter dated 19.08.2022 along with the investigation report was received by the Hyderabad Customs Commissionerate only on 10.03.2023, as evidenced by an official email. Therefore, the SCN dated 03.04.2023 was issued within the prescribed 90-day period from the date of receipt of the offence report, not from the date of the offence report itself.

Application of Law to Facts: The Court held that the statutory clock starts ticking from the date of receipt of the offence report by the adjudicating authority, not from the date of the offence report itself. Thus, the SCN was timely issued in compliance with Regulation 17(1).

Conclusion: The SCN was issued within the statutory time limit; the appellant's contention on delay was rejected.

Issue 2: Responsibility for Filing Shipping Bills and Involvement in Illegal Export

Legal Framework and Precedents: The appellant argued that the shipping bills for the alleged illegal export of red sanders were filed by another CHA, M/s Sri Sai Lakshmi Logistics, and not by the appellant. The appellant relied on a recent decision of the Mumbai Bench where it was held that a Customs Broker who merely obtains KYC documents but does not handle the export consignment documents has no liability for shipments handled by another CHA.

Court's Interpretation and Reasoning: The Court noted that the Managing Partner of the appellant admitted that the Branch Manager, who filed the shipping bills, was under their control and that he had approved the filings without due diligence, including failure to verify KYC documents and obtain authorization from the exporter. This admission established the appellant's responsibility for the filings. The Court distinguished the cited Mumbai case on facts, holding that the principle was not applicable since the appellant had direct involvement through its employee.

Key Evidence and Findings: Statements of the Managing Partner and documentary evidence showed the appellant's involvement in the filing and clearance of the shipping bills connected to the illegal export.

Conclusion: The appellant was responsible for the filing of the shipping bills and cannot deny liability based on delegation to branch employees.

Issue 3: Denial of Opportunity for Cross-Examination

Legal Framework and Precedents: Regulation 17(4) of CBLR, 2018 provides that the Customs Broker shall be entitled to cross-examine persons examined in support of the grounds forming the basis of proceedings. If permission is declined, reasons must be recorded in writing. The principle of natural justice requires that cross-examination be allowed to test the veracity of evidence. The appellant relied on Supreme Court and High Court decisions including M/s Shasta Freight Services Pvt Ltd, M/s Naman Gupta, and CCE Ahmedabad-II, which emphasize the necessity of cross-examination in such proceedings.

Court's Interpretation and Reasoning: The appellant contended that they were denied cross-examination of key witnesses whose statements were relied upon. The adjudicating authority's refusal to permit cross-examination was found to be without adequate reasoning and thus violative of natural justice. The Court rejected the Revenue's reliance on a Principal Bench decision that cross-examination is not a right when statements are not retracted, noting that the cited decision was not applicable to Regulation 17(4) of CBLR, 2018 and the facts of the present case.

Application of Law to Facts: The Court held that the failure to allow cross-examination of witnesses whose statements formed the basis of the SCN and adjudication proceedings was a procedural irregularity and a breach of natural justice.

Conclusion: The impugned order was set aside on this ground and the matter was remanded for fresh adjudication after allowing cross-examination.

Issue 4: Justification for Revocation of License and Imposition of Penalty

Legal Framework and Precedents: The revocation and penalty under CBLR, 2018 require proof of violation of licensing regulations and involvement in illegal activities. The appellant's prior revocation for a separate smuggling case was noted but the Court reiterated the settled principle that each case must be decided on its own facts without prejudice from past conduct.

Court's Interpretation and Reasoning: Given the procedural infirmity relating to denial of cross-examination, the Court declined to uphold the revocation and penalty at this stage. The Court emphasized the need for a fair opportunity to both parties before arriving at a final conclusion.

Conclusion: The matter was remanded for fresh adjudication after affording proper opportunity, including cross-examination, to ensure just decision-making.

3. SIGNIFICANT HOLDINGS

- "The SCN shall be issued within 90 days from the date of receipt of an offence report and not from the date of offence report." (Regulation 17(1), CBLR, 2018)

- "The failure to allow cross-examination of the persons examined in support of the grounds forming the basis of the proceedings is a violation of the principles of natural justice under Regulation 17(4) of CBLR, 2018."

- "The appellant cannot deny responsibility for shipping bills filed by its branch manager who admitted approval without due diligence, including failure to verify KYC and obtain exporter authorization."

- "Each case must be decided on its own facts and past criminal history or revocation of license cannot be used to prejudice the present proceedings."

- "The impugned order revoking the Customs Broker License and imposing penalties is set aside and the matter is remanded to the adjudicating authority for fresh decision after allowing cross-examination and proper opportunity to the parties."