TMI Blog2019 (9) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to advise the importer/exporter about the relevant provisions of law and the mandate of true compliance thereof but is also responsible to inform the Department if any violation of the provisions of the Customs Act appears to or have been committed by his client at the time of the clearances - There is no dispute about the settled law that CHA is not an inspector to weigh the genuineness of the transaction. It is merely a processing agent of documents with respect to clearance of goods through the Custom House either himself or through his authorized personnel. Penalty as that of revocation of license cannot be imposed upon the CHA in absence of any active or passive facilitation by the appellant. There is sufficient oral evidence in the form of statements of all concerned, that too in corroboration, about the consignment received vide the impugned Bill of Entry to contain mis-declared and under-valued mobile accessories and to also have the mobile accessories of Samsung brand infringing the Intellectual Property Rights which despite seizure and the permission of being warehoused under Section 49 of Customs Act, 1962 were diverted to the premises of the actual purchaser of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pvt. Ltd., Lajpat Nagar, New Delhi was called upon to verify the noticed IPR infringement about the aforesaid products. M/s. React India Pvt. Ltd. after necessary inspection submitted their Technical Analysis Report vide letter No. 180004IN dated 13.01.2018 certifying that the products of Samsung brand found in the consignment under the impugned Bill of Entry were counterfeited and necessary actions in accordance of IPR Rules was accordingly prayed. Accordingly, the goods of the impugned Bill of Entry were seized. However, those were handed over for the safe custody to Shri Chaman Kumar Verma, the Authorised Representative/ G-Card Holder of the appellant, the CB/CHA, who was present at the time of checking of goods, after drawing representative samples of each item for further investigation. 2. The proprietor of M/s. Arun Enterprises, Shri Mohan Kumar Jha vide letter dated 22.12.2017 requested for warehousing of the aforesaid goods under Section 49 of Customs Act, 1962 on the ground of bearing heavy demurrage charges. The Space Availability Certificate No. 072 dated 22.12.2017 issued by M/s. All-ways Logistics India Pvt. Ltd., the public bonded warehouse, was annexed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the same to M/s. All-ways Logistics India Pvt. Ltd. But after the subsequent refusal of Shri Niyaz Khan for taking those bags into the warehouse that all the bags were brought back to Mahipalpur godown of Shri Ramu Chhetry. The bricks and stones were removed and the bags/ packets got destroyed. 4. The office address of importer M/s. Arun Enterprises was verified alongwith the address of its proprietor Shri Manoj Kumar Jha. Both the addresses were found false. Statements of Shri Aakash Sharma, Shri Chaman Kumar Verma, Shri Rajesh Kumar driver of vehicle No. DL1LT2858 in which were loaded the goods from the Customs area to be taken to M/s. All-ways Logistics India Pvt. Ltd. and of Shri Ramu Chhetry, the actual recipient of the imported goods having his godown at Mahipalpur, Delhi behind Apra Automobiles were recorded. Finally, the statement of Shri Rajnish Kumar, proprietor of M/s. Skytrain was also recorded. The Department concluded that Shri Raman Kumar Jha had taken IEC in the name of M/s. Arun Enterprises, the proprietor, Shri Manohar Kumar Jha whereof was his brother-in-law. He in connivance with Shri Chaman Kumar Verma, the Authorised Representative/ G-Card Holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is alleged that in the gross violation of established norms and procedures, the Customs Authorities on the Application filed by the importer under Section 49 of Customs Act on 22.12.2017 granted permission for the seized goods to be warehoused at M/s. All-ways Logistics India Pvt. Ltd. and the authorities had handed over the goods under seizure to one Shri Aakash Sharma. It is impressed upon that he said Shri Aakash Sharma is neither the employee of the CHA nor is its agent. CHA was otherwise not to take care of seized goods. Apparently, no such authority was given to the appellant by the Customs Authority. It is suddenly after four months on 16.04.2018 that Shri Niyaz Khan from warehouse authority informed Customs (Preventive) about not receiving the goods from the importer despite issuance of Space Availability Certificate. But no enquiry was got conducted from said Shri Niyaz Khan about not informing the authorities concerned on 04.01.2018 itself. With respect to deviation and disappearance of goods after the seizure of the same by the Customs Authorities, the CHA had no role to play. Nothing has been attributed to the CHA/ appellant even in the enquiry report. 8. The v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his statement dated 20.12.2017 he has acknowledged Shri Aakash Sharma to be his associate/employee. Said Shri Aakash Sharma in his statement dated 19.04.2018 and 24.04.2018 has acknowledged that he has been working in association with appellant/CB. The Department has impressed upon a letter of the appellant written to the Superintendent of Customs (Preventive), New Customs House, IGI Airport, New Delhi as was received by the Department on 18.04.2013 wherein the appellant has acknowledged that the consignment of M/s. Arun Enterprises against the Bill of Entry No. 4470298 dated 19.12.2017 was allowed to be sent to public bonded warehouse namely M/s. All-ways Logistics India Pvt. Ltd. Mr. Aakash Sharma is acknowledged to be the person authorised by the appellant and is mentioned to have been handed over with the shipment to be taken to the warehouse with Mr. Niyaz Khan as the concerned in-charge there. However, on checking the cargo in the warehouse, the shipment was not found. The intervention was requested by the appellant from the Customs Authorities. It is impressed upon that the said letter is sufficient to highlight the involvement of the CHA in the entire transaction and is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to also be present in the consignment and also for the alleged diversion of the goods. 12.2 For the purpose, foremost, we need to first appreciate the obligations as have been imposed upon the Customs Brokers by the Customs Broker License Regulation 2013/2018. We observe that the same are mentioned under Regulation 14 thereof which reads as follows: 14. Obligations of Customs House Agent. - A Customs House Agent shall : (a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as Customs House Agent and produce such authorisation whenever required by an Assistant Commissioner of Customs or Deputy Commissioner of Customs; (b) transact business in the Customs Station either personally or through an employee duly approved by the Assistant Commissioner of Customs or Deputy Commissioner of Customs, designated by the Commissioner; (c) not represent a client before an officer of Customs in any matter to which he, as officer of the Department of Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of the Custom House Agent, prominently at the top of such documents; (n) in the event of the licence granted to him being lost, immediately report the fact to the Commissioner; (o) ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay; and (p) not charge for his services as Customs House Agent in excess of the rates approved by the Commissioner from time to time under Regulation 25. Regulation 19 provides for maintenance and inspection of accounts. We have referred to the said Regulation as it casts number of obligations on the Customs House Agent. 12.3 The perusal makes it clear that the CHA is created as a link between Customs Authorities and the importers with an object of facilitating the clearances at Customs as the Custom procedures are complicated. The CHA is thus supposed to safeguard the interests of both the Customs as well as the importers. Hon ble Supreme Court in KM Ganatra and Co. (supra) case while relying upon the decision of Mumbai Tribunal in the case of Noble Agency Vs. Commissioner of Customs, Mumbai reported in 2002 (142) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative of appellant i.e. his G-Card holder namely Shri Chaman Kumar Verma was present in the Customs House area at the time the goods were seized and the panchnama dated 20.12.2017 was prepared. The goods were handed over for safe custody to the CELEBI/ the authorized representative. The G-Card holder of the appellant, Shri Chaman Kumar Verma, in his statement, as was recorded on 20.12.2017 and even subsequently on 20.04.2018, acknowledged him to be working with the appellant since 2010 and looking after the filing of Bill of Entry for clearance of goods landed in ACC (Import), New Delhi. Shri Rajnish Kumar, proprietor of the appellant is stated to have the knowledge of Bill of Entry No. 4470298 dated 19.12.2017 and that the said Bill of Entry was filed after getting proper authorization from importer M/s. Arun Enterprises, Shri Manohar Kumar Jha, the proprietor thereof. The KYC of this importer was examined, not only that even the goods under said Bill of Entry are acknowledged to be examined in presence of said G-Card holder. He also acknowledged to have visited the office of importer several times. However, this acknowledgment about visiting the office stands contradicted from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aman Kumar Verma. Though the appellant has taken the stand that he has no knowledge about any person known as Shri Aakash Sharma and any act done by Shri Aakash Sharma and that the liability cannot be fastened upon the appellant, but the appeal record is found to have a letter written by the appellant/ CHA to the Superintendent of Customs (Preventive) as was received by them on 18.04.2018 informing about the shipment of M/s. Arun Enterprises under the impugned Bill of Entry to the warehouse. It has specifically been mentioned in the said letter that the person of the CHA/appellant namely Shri Aakash Sharm handed over the shipment to the warehouse which was received by Shri Niyaz Khan. This acknowledgment about Shri Aakash Sharma is sufficient to falsify the contention of the appellant about having no knowledge of the issue involved but to corroborate the statement of Shri Niyaz Khan. The warehouse had contacted the concerned person though email. It was revealed from the record that those e-mails were sent to Shri Aakash Sharma at e-mail address: akashsharma21101991 gmail.com. 16. Further, this letter clarifies that since the date of seizure the facts were in the notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the warehouse but the records of the warehouse had no receipt of any such consignment on 29.12.2017. 18. However, we observe from record that: (i) Shri Aakash Sharma admitted to have no such document/evidence as may prove that the consignment of impugned Bill of Entry was received by M/s. All-ways Logistics India Pvt. Warehouse. It is apparent from record that even Shri Chaman Kumar Verma could not produce any evidence for getting the goods warehoused despite he assured for producing the same. The factum of goods to have never reached to M/s. All-ways also gets corroborated from the statement of Shri Jatin Bakshi who was the owner of the truck No. DL1LT2858 by which the goods under impugned Bill of Entry were transported from Air Cargo Complex. He had acknowledged that his services were hired by Shri Aakash Sharma from ACC (Import) to M/s. All-ways Logistics warehouse at Dhoolsiras. However, the goods were not taken to the warehouse but were diverted to the parking space of transporter itself at Mahipalpur, behind Raddison Hotel. The truck remained parked with the loaded goods from 28.12.2017 to 30.12.2017 on which date the goods were diverted to godown behind Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises with his brother-in-law as the proprietor thereof, the goods in the consignment to be mis-declared and under-valued and to also have infringed the Intellectual Property Rights were in the notice of Shri Chaman Kumar Verma as well. Mr. Raman Jha also corroborated the factum of goods being diverted from the ACC (Import) to the godown of Shri Ramu Chhetry instead of M/s. All-ways Logistics India Pvt. Ltd. where the mobile accessories were removed from the 99 packages as were sent from the Customs to be warehoused and those packages being re-filled with stones and bricks to be transported to M/s. All-ways Logistics India Pvt. Ltd. and were subsequently being refused to be warehoused by the person in-charge thereof, i.e., Shri Niyaz Khan. 20. From the entire above discussion it stands clear that there is sufficient oral evidence in the form of statements of all concerned, that too in corroboration, about the consignment received vide the impugned Bill of Entry to contain mis-declared and under-valued mobile accessories and to also have the mobile accessories of Samsung brand infringing the Intellectual Property Rights which despite seizure and the permission of bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during their employment as he is under the burdened duty to exercise such supervision as may be necessary to ensure the proper conduct of his employees in the transaction of the business. In view thereof, we are of the opinion that the Adjudicating Authority below has committed no error while holding that the Custom Broker Firm/the appellant has failed in compliance to their responsibilities cast upon them as per the Regulations 10(d) (e) (n) and 13 and 12 of CBLR, 2018 and thereby revoking its license forfeiting the security deposit. 23. While arriving at the given conclusion we are further of the opinion that for the illegality committed in the present case though the mensrea was with the G-Card holder of the appellant binding the appellant as well, his friend Shri Aakash Sharma, the actual purchaser of the impugned consignment, Shri Ramu Chhetry but the way goods have been diverted from ACC (Import) Customs Area to the godown of said Shri Ramu Chhetry, the same was not possible without connivance or at least grave negligence of the seizing officer in dealing with the seized goods. We find that whenever the goods are seized for violation of any of the provisions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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