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2022 (7) TMI 1198 - HC - CustomsLiability of a Customs Broker - liability as per Regulation 17(9) of the Customs Broker Licensing Regulation 2013 - whether payment of differential amount duty, by the respondent to the appellant does not prove admission of liability and involvement of the respondent functioning as importer itself? - statements made by the director of the respondent admitting the offence and the involvement thereto binds the respondent company - doctrine of proportionality - HELD THAT:- In terms of clause (d) of Regulation 11, the respondent was bound to advise his client to comply with the provisions of the Act and in case of non-compliance, the respondent should bring the matter to the notice of the Customs Authorities. In terms of clause (n) of Regulation 11, the respondent has to verify the antecedents, the correctness of the importer, exporter code no. identity of his client and functioning of his client at the declared address by using reliable, independent, authenticate document, data or information. Admittedly, the conduct of the respondent clearly shows that he has breached the said provision. It is also noted the legal principle of Preponderance of Probabilities which is required to be applied and not proof beyond reasonable doubt. Bearing this in mind, when we examine the order passed by the licensing authority dated 21.09.2017 by which the license was revoked, the statement of Shri Subhasish Bhattachariya, Director of the respondent company recorded under Section 108 of the Act on 03.09.2016, 05.09.2016 and 11.11.2016 were taken note of. There is a clear admission that there was a mis-declaration in the weight of the imported consignment, and that the weigh bridge operator of CONCOR-CFS Kolkata used to ask staff of the respondent about the declared weight in the Bill of Lading or IGM and used to issue weighment slip matching with the declared weight. Further he had stated that the customs authorities never checked the weight of the packing materials of the bills of the old and used clothing but relied on the declaration in the imported documents. Further he had stated that after examination by the customs, the weighment slips were destroyed by the respondent company. Shri Marinmoy Das, another Director of the respondent in his statement under Section 108 of the Act recorded on 15.09.2016 stated that no weighment slips were found from their office by the DRI as they were destroyed as per the instructions of the importer because the weight of the consignment were not as per declaration. The manipulated weighment slips were not only handed over to the representatives of the respondent and the actual weight and 6 containers were available in the computer installed in the Weigh Bridge. The weigh bridge operator has specifically implicated the Director of the respondent and the G Card holder who dealt with the cargo on behalf of the respondent. The statement recorded from the transporter shows that the declared weight of the container is much less than the actual weight. The importers did not respond to the summons issued under Section 108 of the Act and the same were returned undelivered with remark “not found/ not existed”. Therefore, the licensing authority concluded that the said importers are paper firms and the respondent has kept the department in the dark about the identity of his client and thus allowing them to evade customs duties. Furthermore, the respondent company had deposited a sum of Rs. 65.40 lakhs by 26 demand drafts stated to be on behalf of the importers - the tribunal has picked holes in the evidence brought on record by the licensing authority which not only probabilises but also establishes the violation committed by the respondent thereby giving no room for interference. It is pointed out that licence granted to the respondent is to expire on 22.07.2022 and in the event this Court does not agree with his submissions, the relief as granted by the Hon’ble Supreme Court can be considered in the case of the respondent. The order passed by the tribunal suffers from errors of law and perversity calling for interference - the appeal filed by the revenue is allowed and the substantial questions of law are answered in favour of the revenue.
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