TMI Blog2016 (12) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... are other documents like certificate of registration from Maharashtra Sales Tax Department in favour of the importer 'M/s. Jai Ambey Impex' also submitted therefore the identity of the importer is not under doubt. The entire objective of taking authority letter and KYC is for the purpose to establish the identity of the importer. In the present case the importer is very much existing all the time and he came forward to claim the goods imported therefore except mala fide intention on the part of the importer there is no doubt about the identity of the importer. As regard the dealing of CHA with the importer, we do not find anything malafide which led to offence of evasion of anti dumping duty. It is very important to note that when the appellant filed the Bill of Entry thereafter when they came to know about evasion of anti dumping duty and also there is a misdeclaration of quantity and value of the goods, he advise the importer for payment of anti dumping duty when he felt that the importer is not complying his advise. He immediately withdrawn himself as CHA vide his letter dt. 10.5.2013 i.e. within four days of filing Bill of Entry. As regard the mention by the Ld. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Investigation revealed that the importer has submitted manipulated invoices to the Customs for filing the Bill of Entry which was prepared by one of the employees of the importer. In the statement of the importer recorded under Section 108 of the Customs Act, 1992 on 22.5.2013 has informed that he had agreed to pay ₹ 4lakhs over and above the agency charges for customs clearance of the said consignment without the payment of anti dumping duty on the needles to Mr. P.P. Singh operating in the name of M/s. S.N.M Agency under Customs Broker No. 11/1481. Apart from the said misdeclaration, the goods imported are also found to be undervalued to the tune of 80% of the actual value. On the investigation it was revealed that the above stated goods were imported by M/s. Jai Ambey Impex in violation of the provisions of Customs Act, 1962. Though initially M/s. S.N.M Agency has undertaken the job of Customs clearance but subsequently for the purpose of clearance the said job was assigned to the appellant for which Shri P.P. Singh of M/s. S.N.M. Agency contacted Shri Manish Singh, who is one of the employee of the appellant. On statement recorded under Section 108 of Shri Manish Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e signature of the importer on the authority letter was found to be different from the actual signature verified by the Bank therefore no authority letter was obtained. Article of Charge-Il In this article of charge was framed for violation of regulation 11(B) of CBLR, 2013 inasmuch as the appellant has not personally or through an employee carried out the job of clearance in the present case. Shri Manish Singh employee of the appellant has filed the bill of entry but it was told to Shri B.P. Singh that he will not go to the docks for clearance it will be managed by Shri P.P. Singh through the officer therefore the appellant. has violated the Regulation 11 (b) of CBLR 2013. Article of Charge-III In this article of charge there is a violation of Regulation 11 (d) of CBLR 2013 by the appellant in as much as the appellant has not only kept himself away from giving a legal advise to the importer but it is one Shri Anuj, an employee of M/s. S.N.M. Agency and Shri P.P. Singh, who were co-coordinating with the importer. Therefore the appellant has not discharged their obligation as they have not advised the importer regarding the correct levy of anti dumping duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dumping duty for monetary consideration. They have not discharged their duty which efficiency, therefore the Regulation 11(m) appears to have violated. Article of Charge-Vlll Under this article of charge Regulation 11 (n) was alleged to have violated as per this Regulation, the Customs Broker shall verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. Shri Manish Singh in his statement dt, 12.6.2013 recorded under Section 108 has admitted that he has not verified by the documents which was handed over to him by Shri P.P. Singh; they have failed in their duty to verify the genuineness of the IEC holder; that they also failed to verify the quantity of goods declared by the importer. Accordingly, he has failed to verify the correctness of the information provided to him by his client, hence failed to exercise due diligence. Since they have acted on the direction of middlemen and not by the importer, they have violated the Regulation 11 (n) of CBLR,2013. On these charges Inquiry Officer submitted the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Counsel for the appellant submits that the appellant had no role for the misdeclaration of description of goods and in fact they had acted in a diligent manner informing the department about the alleged mis-declaration and they had withdrawn their services on behalf of the importer. Hence by informing the department about alleged misdeclaration they had withdrawn their services. Therefore they acted in a bona fide manner once they have withdrawn no charge can be established against the appellant. The Ld. Commissioner has rejected the authority letter and indemnity obtained by the appellant on the presumption that it is after thought it is completely erroneous. He submits that once the authorization was obtained by the appellant the violation of Regulation 11 (a) cannot be alleged. As regard the confessional statement of Shri Manish Singh retraction dt. 13.6.2013 was submitted. Accordingly, the case could not have been decided on the basis of the statement. He submits that the appellants produced copy of letter dt. 10.5.2013 addressed to Assistant Commissioner CFS that the importer was not ready to follow the advise to pay anti dumping duty on the quantity of pieces needles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves from the job of the clearance of the goods on behalf of the appellant. It is proved that the authority letter was fake as the signature from the authority letter not matching with the actual signature certified by the Bank. He submits that once it is proved that the appellant customs Broker is very well aware about the wrong doing by the importer then all the regulations which the Ld. Commissioner has held to be violated stand established. Therefore the Customs Broker has no legal and moral right to carry out the customs clearance work. He placed reliance on the decision of this Tribunal in the case of International Express Co. Vs. Commissioner of Cus. (General), Mumbai 2014 (300) E.L.T. 262 (Trio-Mumbai). 4. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute that large scale evasion of anti dumping duty by the importer is established and also misdeclaration of the quantity and value of the goods. Now it is to be seen that whether the appellant Customs Broker is party to the evasion of such duty and misdeclaration committed by the importer. We have carefully gone through the various stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is consignment as the party has not come clean and misdeclared the needles. 1 further say that on 10.05.2013 Manish Sing handed over a letter addressed to Assistant Commissioner of Customs, informing that they were not acting as CHA for IAA the said consignment, which was submitted to the said officer and acknowledgement received was handed over to Manish Singh on next day. As the consignment could not be cleared I returned the amount of ₹ 2,30,000/- in two installments i.e. ₹ 1,30,000/- in first time and ₹ 1,00,000/- in the second time and I paid the said two installment in or around 15.05.2013. Statement qf Shri B P Singh dated 21-5-2013 On being asked , I wish to state, that, on 6 th May 2013request of Shri Manish Singh, employee of M/s Vinayak Shipping Services, who is my cousin uncle I went to the Appraising Officer to know about the status of the import consignment pertaining to bill of entry no. 2045723 dated 6.5.2013, 1 learnt from the Appraising Officer Shri Mann that he has raised query, PL CLARIFY THEQTY OF SEWING NEEDLES, WHAT IS THE QTY PER BOX, TOTAL NO. OFPCS ETC . I informer -Manish Singh about this query. Thereafter on 10.5.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was given to me by P.P. Singh. On being asked that the description on the invoice is 500 PCS EMBROIDERYILACHEE NEEDLE , the number of cartons shown in the invoice is 200, the unit given in the invoice is Box and the total quantity shown is 20000, does not match, I say that I did not verify the same as did not, scrutinise it. On 3.5.2013 P.P.Singh sent one of his staff to my office and took my sign and stamp of M/s. Vinayak Shipping services on the back side of the original hill of lading, arise took the original bill of lading which was to be submitted Hyundai Merchant Marine Pvt. Ltd., Andheri. The original Delivery Order in the name of M/S. Vinayak Shipping Services was received by P.P. Singh which was informed by him (PP Singh) P.P. Singh conveyed to me the IGM No. of the aforesaid import consignment through SMS. The IGM No. is 2289750 dated 1.4.2013. On 3.5.2013 lfiled bill of entry, for the above import consignment online, which failed as an error was reflected on the system, which showed a wrong Port Code as well as the system was not accepting the declaration of needles in boxes and therefore on the same day (3.5.2013) I told P P Singh telephonically that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import the responsibilities as a CHA from this import consignment. On 10.5.2013 1 gave a letter to P P Singh issued by M/S. Vinayak Shipping Services addressed to Assistant Commissioner, Customs, CFS Mulund, Mumbai informing him that we are not acting as CI-IA for Ws. Jai Ambey Impex for the said consignment since the importer was not ready to adhere to the advice for levy of antidumping duty on needles and told him to hand over the said letter to AC Customs Mulund. On 11.5.2013 he (P P Singh) brought the acknowledged copy of the said letter. Statement of Shri Masnish B. Singh dated 12-6-2013 Further to my earlier statement dated 23.5.2013 I say that I have not verified the import documents bearing bill of lading no. HDMUNXAY 3011863 dated 18.3.2013, invoice no. YX20130395 dt 16.3.13 issued by M/S. Shenzhen Pulaisdun Trading Co. Ltd., China in favour of M/S. Jai Ambey Impex and its packing list, which were handed r over to me by P P Singh of M/s. S. N. M. Agency. We as CFLA have failed in our duty to (verify the genuinity of the IEC holder of the above import consignment. We have also failed to verify the quantity of the goods declared by the importer M/S. Jai Ambey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vinayak Shipping Services received by P P Singh which was informed by him (PP Singh). P P Singh conveyed to me the IGM No. of the was aforesaid import consignment through SMS. The IGM No. is 2289750 dated 1.4.2013. on 3.5.2013 1filed bill of entry for the above import consignment online, which failed as an error was reflected on the system which showed a wrong Port Code as well as the system was not accepting the declaration of needles in boxes and therefore on. the same day (3 5 2013), I told P P Singh telephonically that the document could not be filed today due to the above two reasons P. P. Singh informed me that he will tell me the declaration of needles In pieces after confirming from the party and he told me to file it on the next working day, i.e. on 2013. I took out a print out of this import check list and gave it P P Singh at his residence on 4.5.13 and I also kept a copy with me. In the morning of 6.5.2013 at around 11.00 AM B P Singh (mobile no.8108688017) riled me telephonically on my mobile and told me that there has to be a correction in a check list and that the needles have anti dumping duty and also that the notification respect of antidumping duty has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regard the charges of violation of various regulations alleged and confirmed by the lower authority, we find that the appellant before accepting the job of clearance of the goods has taken authority letter from the importer. From authority letter and the verification of the signature by the bank, we do not see any difference in the signature. Moreover whether the signature is correct or not if there is any doubt the same cannot be established without getting it certified from the forensic expert which department has failed to do. Moreover there are other documents like certificate of registration from Maharashtra Sales Tax Department in favour of the importer 'M/s. Jai Ambey Impex' also submitted therefore the identity of the importer is not under doubt. The entire objective of taking authority letter and KYC is for the purpose to establish the identity of the importer. In the present case the importer is very much existing all the time and he came forward to claim the goods imported therefore except mala fide intention on the part of the importer there is no doubt about the identity of the importer. As regard the dealing of CHA with the importer, we do not find anyth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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