TMI Blog2019 (12) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of ₹ 65.00 Lakhs to Customs so as to make good the loss to the Revenue. This in itself proves the bona fide of the appellant to sincerely attempt for the loss of revenue to be compensated. The charge against appellant is only regarding violation of Regulation 18(d) and 17(a) of CBLR. Regulation 11(d) and CBLR 13 is not established conclusively, which says Customs Broker shall advice his client to comply with provision of the act and in case of noncompliance bring the matter to the notice of Deputy Commissioner or the Assistant Commissioner of Customs as the case may be - Since the investigation was not carried out in respect of all consignments of import of old and used garments, for which weighment slips were made available it cannot be established beyond doubt that offence has been committed for all as held in the impugned order. Penalty - HELD THAT:- The penalty that has been imposed against the appellant in the impugned order is disproportionate to the penalty imposed. The appellant has suffered from the date of suspension of his licence till now which in our opinion is itself sufficient considering the gravity of offence committed by the appellant - the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence of Customs Officer and representative of appellant and officials of custodian, CONCOR, CFS, under Panchnama proceeding, which confirmed that infact there were manipulation of weight in respect of imported consignment. The investigation also revealed that Weigh Bridge of CONCOR, CFS, was out of order during 2015-2016 and they had issued manipulated weighment slips reflecting lesser weight which was based on declaration filed by the importer. It is the allegation of the Revenue that the appellant had acted in collusion with importer so as to evade the Customs Duty. The searches, which were conducted at the appellant s premises on 03.09.2016, revealed that the job files pertaining to clearance of imported consignment were not having weighment certificate. The statements of Shri Subhasish Bhattachariya, Director of the appellant company was recorded under Section 108 of Customs Act, 1962 (in short Customs Act) on 03.09.2016, 05.09.2016 and 11.11.2016 wherein he admitted that there were mis-declaration in weight of import consignment of old and used clothing handled by them which resulted into loss of Customs Duty. He also agreed that their employee used to manipulate the weig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between 25-26 M.T. on an average, but the declared weight was always lesser. 7. During investigation, the DRI also summoned the various importers, however, the summons returned undelivered with remark not found/not existed , which as per the department indicated that the importers were non-existent firm which was not informed by the appellant to the Customs department. Further the appellant has also paid an amount of ₹ 65.40 Lakhs towards the differential duty on behalf of importer till the issuance of show cause notice. 8. On the basis of aforesaid investigation, it was concluded that appellant has violated the provisions of Customs Broker s License Regulation (CBLR). 9. The department suspended the licence of the appellant on 03.01.2017 under the provisions of Regulation 19(1) of CBLR and enquiry was ordered to be conducted. After the enquiry proceeding the charge levelled on the appellant was held to be proved by the enquiry officer for violation of provisions of Regulation 11(d), 11(e), 11(m) and 17(9) of the CBLR. The enquiry report was submitted to the Commissioner, who after giving opportunity of personal hearing held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Weigh Bridge Operator. It is also on record that department has not produced remaining weighment slips other than the five enclosed with the show cause notice, but in fact these original weighment slips have been resumed from Shri Ratan Baidya, which is acknowledged by the Director of the appellant Shri Subhasish Bhattachariya. Non-supply of remaining weighment slips have made the proceeding invalid, illegal and bad in law and the show cause notice is therefore required to be set aside on the basis of which the impugned order has been passed. 12. It is also submission of learned Advocate that the various statements which have been recorded from the Weigh Bridge Operator, Director of the Company are contradictory to each other and thus required to be ignored in the proceeding. For instance, vide statement dated September 7, 2016 Shri Ratan Baidya in response to Question No.4 alleged that the Director of the appellant, Shri Subhashsh Bhattachariya has asked him to manipulate the net weight of the imported consignment, however in the other statement dated November 11, 2016 Shri Bhattachariya has specifically denied the same. Shri Subhashish Bhattachariya in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order and contends that appellant was involved in the manipulation of weight of the imported consignment in order to defraud the Customs Revenue. Accordingly the appellant has failed in discharging their duty as per CBLR. 16. We have considered the rival submissions and have perused the case record. 17. The issue involved in this appeal is regarding cancellation of CHA licence of the Appellant. It is the contention of the Revenue that the appellant was himself involved in the manipulation of weight of the imported consignment in connivance with the importers, which is based on the investigation conducted by DRI and weighment of detained consignments in respect of live Bills of Entry. No doubt there is a variation in the declared weight of the imported consignment and the actual weight thereof as contended by Revenue. When the weighment slips are not signed by the employee of the Weigh Bridge Operator, Shri Ratan Baidya, who has mainly been responsible for the weighment of the import cargo and has given inconsistent statements on various occasions regarding as to who, from the appellant side, has instructed him to manipulate the weight of im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.One of the contentions of the appellant is that the proceedings were initiated and concluded without any substantive reliance on credible evidence. We do note that there are a number of surmises in the inquiry report and in the findings of the adjudicating Commissioner. Much reliance has been placed on statements recorded under Section 108 of Customs Act, 1962. Its evidentiary value in proceedings initiated in connection with investigation into smuggling has its worth. However, Section 108, which reads thus 108.Power to summon persons to give evidence and produce documents. - Any gazetted officer of customs (1) duly empowered by the Central Government in this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2)xxxxx (3)xxxxx (4)Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). incorporated in the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms so as to make good the loss to the Revenue. This in itself proves the bona fide of the appellant to sincerely attempt for the loss of revenue to be compensated. The charge against appellant is only regarding violation of Regulation 18(d) and 17(a) of CBLR. Regulation 11(d) and CBLR 13 is not established conclusively, which says Customs Broker shall advice his client to comply with provision of the act and in case of noncompliance bring the matter to the notice of Deputy Commissioner or the Assistant Commissioner of Customs as the case may be . Since the investigation was not carried out in respect of all consignments of import of old and used garments, for which weighment slips were made available it cannot be established beyond doubt that offence has been committed for all as held in the impugned order. Further, we find that the penalty that has been imposed against the appellant in the impugned order is disproportionate to the penalty imposed. While holding so, we refer and rely on the decision of Hon ble Delhi High Court s decision in the case of R S R Forwarders vs. Commissioner of Customs, Delhi [2018 (364) ELT 541 (Tri.-Del.)] , wherein it is held as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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