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2016 (1) TMI 426 - CESTAT NEW DELHI

2016 (1) TMI 426 - CESTAT NEW DELHI - 2015 (325) E.L.T. 793 (Tri. - Del.) - Suspension of customs brokers licence - the suspension was ordered and confirmed on the ground that the appellant had violated the provisions of Regulation 11(a), 11(d), 11(j), 11(m) and 11(n) of CBLR, 2013. - Overvaluation to avail of undue benefits of Duty Draw Back and Focus Product Schemes - export of floor coverings - Investigation further revealed that several exporters were non-existent and the Import Export (IE) .....

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the clearances of the impugned goods, we find that some of the exporters of the impugned goods had dealings with the appellant inasmuch as certain ledger accounts of the appellant show debit and credit entries in the name of some such exporters but that by itself would not make the appellant guilty of violation of CBLR, 2013, when it has already held above that in the present case CBLR, 2013 could not have been violated by the appellant when it was not the customs broker in relation to the impu .....

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Delhi under Rule 19(2) of the Customs Broker Licencing Regulations, 2013 (CBLR, 2013) confirmed the suspension of the appellant s customs brokers licence No. 7/2004, which was suspended vide order dated 20-3-2015. 2. The facts of the case briefly stated are as under : - Directorate of Revenue Intelligence (DRI) undertook investigation relating to exports of floor coverings by 21 exporters under nearly 266 shipping bills. The investigation revealed that the goods were not only mis-declared b .....

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ied the middleman Mr. Amit Arora and one of the exporters also stated that Mr. Prakash Sharma determined the classification of the goods which was found to be incorrect. The investigation also revealed that employees of the appellant were handling clearance of the impugned export consignments at ICD, Patpatganj and these employees also had a role in manipulation of the market enquiry to ascertain market value thereof. Mr. Prakash Sharma, Director of the appellant in his statement admitted that h .....

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ectors of HLPL, were also directors in M/s. HLPL Global Logistics Pvt. Ltd., the payments had been received by the appellant in respect of some of the clearances made by the exporting firms, that the addresses of HLPL and HLPL Global Logistics Pvt. Ltd. were the same and during investigation Mr. Prakash Sharma appeared as a co-ordinator of the group companies (HLPL and HLPL Global Logistics Pvt. Ltd.), held that prima facie Mr. Prakash Sharma was the mastermind in the case and therefore liable f .....

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as not the customs broker in respect of any of the impugned exports and therefore question of violation of CBLR, 2013 by the appellant does not arise, (iv) No payment was received by the appellant in respect of the exports which were investigated, (v) Being a sister concern of HLPL Global Logistics Pvt. Ltd. is no ground to suspend appellant s licence for any wrong doing by HLPL Global Logistics Pvt. Ltd. and the Commissioner has not given any ground as to how the two are sister concerns and wha .....

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amp; C. Circular No. 9/2010-Cus., dated 8-4-2010 have not been adhered to. The appellant referred to Calcutta High Court judgment in the case of N.C. Singha & Sons v. Union of India [1998 (104) E.L.T. 11 (Cal.)] to advance the proposition that in the absence of spelling out any immediate action required to be taken, suspension is not warranted. He further referred to Madras High Court judgment in the case of East West Freight Carrier P. Ltd. v. Collector [1995 (77) E.L.T. 79 (Mad.)] for the .....

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live at the same address and operate from the same premises which shows they are in collusion with each other. 5. We have considered the contentions of both sides and perused the records. At the very outset it is pertinent to mention that the customs broker in respect of the impugned exports was HLPL Global Logistics Pvt. Ltd. The appellant and M/s. HLPL Global Logistics Pvt. Ltd. are two distinct legal persons. Supreme Court in the case of Indowind Energy Ltd. v. Wescare (India) Ltd. & .....

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n respect of the impugned goods, which were found to be mis-declared and overvalued and it was not the customs broker in respect of the said goods. Therefore, the question of violation of Regulation 11(a), 11(d), 11(j), 11(m) and 11(n) of CBLR, 2013 by the appellant simply would not arise but we shall revert to it for a more detailed analysis a little later. 6. As regards evidence relied upon by the original adjudicating authority to the effect that Shri Prakash Sharma was guilty of abetmen .....

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infirmity inasmuch as when the appellant was not the customs broker for the impugned goods, its employees had no legal authority to handle the export of the impugned goods; and indeed the customs should not have allowed them to handle the impugned goods because that they were not employees of the customs broker in respect of the impugned goods. It comes out from the impugned order that Commissioner of Customs has blurred the distinction between Mr. Prakash Sharma and the appellant and disregarde .....

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has prescribed certain timelines relating to suspension of customs broker s licence. Para 7.2 of the said circular prescribing the time lines in this regard is reproduced below : - 7.2 In cases where immediate suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the procedure prescribed under Regulation 22 since such an action is taken immediately and only in justified cases depending upon the seriousness .....

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ary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. It is seen that after the receipt of the report dated 5-3-2015 from DRI, the licence was suspended on .....

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issioner has not applied his mind or has not spelt out the circumstances which in its (i.e., Commissioner s) view warranted confirmation of suspension. 8. In the present case, the suspension was ordered and confirmed on the ground that the appellant had violated the provisions of Regulation 11(a), 11(d), 11(j), 11(m) and 11(n) of CBLR, 2013. These provisions are reproduced below - 11. Obligations of Customs Broker. - A Customs Broker shall - (a) obtain an authorisation from each o .....

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