TMI Blog2019 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... , the impugned order holding violation of provisions of Regulation 11(a), 11(d), 11(e), 11(f) and 11(n) of CBLR, 2013 is perverse and none of these provisions are attracted in the facts and circumstances of the case. There is no allegation of filing the bill of entry, knowingly the same to be misdeclared. There is no case of connivance of the appellant CHA with the actual importer of the goods namely Shri Ashok Purohit. There is no allegation by the Revenue that the appellant CHA received any extra remuneration, than the normal remuneration for filing the bill of entry under dispute. The appellant CB /CHA have erred in not receiving the KYC documents directly from the hands of the IEC holder - Shri Shantaram Kajrekar. Further, as the documents were received through Shri Samir Shah relative of partner, there was an element of trust. Thus, there is some element of inadvertance on the part of the appellant-CHA. There is no case of malafidely filing the bill of entry under collusion and /or connivance, with the said Shri Ashok Purohit or Shri Samir Shah. In this view of the matter, the punishment of revocation is too harsh and disproportionate. Accordingly, this appeal in part an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for LED TV (use for 32 ), and (d) Accessories for LED TV (Remote Control/ Plastic Holder/ Screw/ Power Cord/ TV Stand/ Manual/ Empty Carton. 6. The corresponding invoice No. N100200908 dated 21.10.2016 issued by M/s Niku Exim International Pte. Ltd. for the said consignment, specified the value of the goods as USD 11,052 and indicated that parts pertained to 32 LED TVs. Whereas, the other invoice (actual) for the same consignment, retrieved from the premises of M/s Pankit Forwarders, indicated that the PCB with wire pertained to LED TVs having screen sizes of 32 , 40 , 43 , 48 , 49 55 . The scrutiny of the said Bill of Entry dated 02.11.2016 also revealed that during assessment the unit prices of the PCB with wire had been enhanced from USD 3 to USD 5.5 and that the unit price of Back cover for LED TV had been enhanced from USD 2 to USD 5. 7. In the statement recorded of Shri Samir Shah, Proprietor of M/s Pankit Forwarders, he inter alia stated that he was using the licence of M/s S.M. Wairkar to clear the import consignment of M/s Apollo Enterprises and had facilitated clearance of past seven consignments. He had approached Shri Ashok Purohit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an IEC have been issued in the name of his proprietary concern M/s Apollo Enterprises. In the course of investigation by the DRI he came to know that IEC in the name of M/s Apollo Enterprises have been used by one Shri Ashok Purohit for import, whom he had never met before. 11. Statement of Shri Ashok Purohit, Prop. of M/s Navrang was recorded who inter alia stated that he was engaged in import of airconditioner parts and LED TV panels. He agreed with the statement of Shri Shantaram Kajrekar, prop. of M/s Apollo Enterprises. He was in search of an IEC to be used for his imports, as he wanted to avoid tax liabilities. In August, 2016, he met one Shri Sanjay Jadhav who offered him an IEC in the name of M/s Apollo Enterprises for a sum of ₹ 50,000/-. Alongwith the IEC, Shri Sanjay Jadhav had also given him some other documents of M/s Apollo Enterprises like VAT registration certificate, Income tax return and copy of electricity bill for being used as KYC documents. He has given these documents to Shri Samir Shah of M/s Pankit Forwarders whom he had hired for the clearance of his import consignments of parts of LED TV. Although he had his own IEC in the name of M/s N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Back cover for Sony LED TV 43 100 6 Back cover for Sony LED TV 48 76 7 Back cover for Sony LED TV 49 22 8 Back cover for Sony LED TV 55 50 Total Back cover for Sony LED TV 1228 9 Empty cartons for Sony LED TV 32 (KLV-32R302D) 360 10 Empty cartons for Sony LED TV 40 (KLV-40R352D) 620 11 Empty cartons for Sony LED TV 43 (KDL-43W800C) 100 12 Empty cartons for Sony LED TV 48 (KLV-48W652D) 76 13 Empty cartons for Sony LED TV 49 (KDL-49W750D) 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast consignments other than the bill of entry No. 7304512 were cleared on the basis of manipulated invoices/ documents without payment of appropriate custom duty. Further, on scrutiny of documents it was revealed that the value of goods under import at the time of assessment (past six consignment) was for unbranded LED TV. The CVD have been levied on the declared RSP. On the basis of statement recorded and the documents retrieved/ submitted during the course of investigation, corroborated the allegation of mis-declaration and suppression of value of the goods as well as mis-declaration of the description resulting in short levy of duty. 17. It further appears that the appellant Custom Broker as required under the CBLR, 2013 was required to obtain the authorisation from their client by whom they are employed/engaged as CB for transaction of their business or through an employee duly approved by the Deputy/ Assistant Commissioner of Customs. CB is further required to advise his client to comply with the provisions of the Act, further required to exercise due diligence to ascertain the correctness of the information which he imparts to his client and verify antecedent, correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wairkar. 20. The aforementioned show cause notice have been relied upon and reference found in the show cause notice dated 25.06.2018 issued to the appellant for alleged violation of Regulation No. 11(a), (d), (e), (f) and (l) of CBLR, 2013, to show cause as to why not their CB licence should not be revoked and further why not the security deposit be forfeited in whole or part in terms of Regulation 18 read with Regulation 20 of CBLR, 2013 with proposal to further impose penalty under Regulation 22 read with Regulation 20 of CBLR, 2013. Enquiry officer was appointed to enquire, namely Shri Veer Prakash, Assistant Commissioner of Customs, who submitted the inquiry report. 21. Appellant had filed the detailed submission before the enquiry officer on 20.07.2018. 22. The enquiry officer, Shri Veer Prakash submitted his report dated 24.08.2018 with his finding as follows: In the show cause notice it has been alleged that M/s Tanmay Global Logistics has intentionally violated the provisions of Customs Act, 1962 and CBLR 2013 by involving themselves in modus operandi of evasion of customs duty of nearly 90 lacs (as detailed in para No. 13.2 above) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant CB over the last several years. The impugned order is more or less repetition of the show cause notice. The learned Commissioner failed to appreciate that in the facts and circumstances, the appellant have no role in obtaining IEC of M/s Apollo Enterprises or misdeclaration of the goods. The appellant was under bonafide belief that the importer is genuine and goods were declared as per the import documents. Hence, the revocation of the CB licence without any serious fault on their part, is not warranted and wrong. Further, it is evident from the statement recorded of Shri Samir Shah, Shri Ashok Purohit and Shri Shantaram Kajrekar that the appellant was not aware about the illicit procurement and use of the IEC of M/s Apollo Enterprises by Shri Ashok Purohit. Thus, the impugned order holding violation of provisions of Regulation 11(a), 11(d), 11(e), 11(f) and 11(n) of CBLR, 2013 is perverse and none of these provisions are attracted in the facts and circumstances of the case. There is no allegation of filing the bill of entry, knowingly the same to be misdeclared. 24. As regards the charge of violation of Regulation 11(a) of CBLR, 2013 is concerned, is unten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd verified the same online and found the same to be correct. Further, it is admitted fact that the importer IEC holder exists at the address mentioned in the IEC. The only fact is that, the Prop. Shri Shantaram Kajrekar accepted in his statement that he has not obtained the IEC code himself, but the same was obtained by one Shri Sanjay Jadhav in his name, on the basis of documents provided by the said Shri Shantaram Kajrekar. It is further not the case of the Revenue that any of the KYC documents was forged. Thus, there is no violation of the provisions of Regulation 11(n) of the CBLR, 2013. The appellant also relies on the ruling of this Tribunal in Yogesh Kumar vs. Commr. of Customs, New Delhi (Import General) -2016 (344) ELT 586 (Tri. Del.) wherein this Tribunal has held that once there is a finding by other wing of same Department to the extent that appellant had made efforts to find out the genuinity of exporter by looking into the website, as regards IEC code as also PAN card etc. there is no justifiable reason for the Commissioner to deviate from said finding. It is further urged that Revenue has no case that the said document which stands examined by Customs broker from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rant imposition of penalty. Learned Counsel urges that the learned Commissioner has failed to appreciate the past good conduct of the appellant and only for the minor error on their part, the punishment imposed is very severe rendering employees of the appellant jobless. Thus, the same is too harsh and contrary to the doctrine of proportionality. Learned Counsel further urges that Ms.Madhu Gaur obtained the CHA licence in the year 2013 and thereafter entered in partnership with Shri Dewang M. Shah who was managing Mumbai office and handling the clearances. After this incidence, Ms. Madhu Gaur dissolved the partnership in the year 2016, and is now the Prop. of M/s Tanmay Global Logistic. Further, it is urged that Ms. Madhu Gaur unfortunately became widow in the year 2008 and is having three school going children to be cared and is facing grave hardship and difficulty. Learned Counsel further urges that for the act of alleged omission by the partner Shri Dewang M. Shah, the appellant CHA should not be subjected to such severe and disproportionate punishment and accordingly prayed for relief. He further relies on the ruling of Tribunal reported at 2017 (358) ELT 1200 (Tri. Mum.). ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
