TMI Blog2020 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Order and the allegations in the show cause notice by the ld. Commissioner in passing the impugned order, has vitiated the impugned order, leading to mis-carriage of justice. There is violation of the provisions of Section 138 (B) and (C) of the Customs Act, as the evidence being statement of other persons relied upon in the adjudication proceedings, has not been examined nor made available for cross examination. Further, there is no certificate as provided under Section 138 (C) of the Customs Act, in support of the electronic record relied in the show cause notice like email, whatsapp conversation, etc. - The Suspension order and the SCN do not provide the detail of the said imports. Further, the SCN to those importers was issued after the issue of SCN to the appellant CB, thus cannot be read in evidence, unless the facts were incorporated in the SCN. Matter remanded to the Respondent Commissioner for de novo adjudication after providing RUD‟s, giving opportunity to cross-examine the witness of Revenue - appeal allowed by way of remand. - Customs Appeal No.51072 of 2019 - FINAL ORDER NO.50705/2020 - Dated:- 29-6-2020 - HON BLE MR. ANIL CHOUDHARY, MEMBER (JUDICI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imately on account of alleged mis-use of ISFTA/SAFTA. 4. It is further alleged in the show cause notice that the proprietor of the appellant Customs Broker Vinod Kumar Sharma in his statement dated 28.09.2017 and 22.11.2017 has, inter alia, confessed that the various importers including the aforementioned three of Ahmedabad were mis-using the ISFTA/SAFTA notification for import of Areca nuts at concessional rate of duty through one Anish Bhai of Colombo. It was in his knowledge that Areca nuts and Black pepper were first exported from Indonesia/Singapore and Vietnam to Sri Lanka, where the documents of Sri Lankan origin were prepared and thereafter, areca nuts /black pepper were exported to India showing that of Sri Lankan origin with intent to avail benefit of concessional rate of duty. Mr. Vinod Sharma further admitted that he used to advise the importers not to show the country of origin other than that of Sri Lanka and that he also advised them also not to disclose or talk over phone as to from where and when shipment of areca nuts came to Sri Lanka etc. On being shown the documentary evidence in the form of whatsapp chat, Mr. Sharma confirmed the same as true; that Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther mis-use of the Customs Broker licence. Subsequently, the Customs Broker licence was suspended by order dated 31.05.2018 issued by the Respondent Commissioner and post hearing, the suspension was confirmed by order dated 27.06.2018. 6. It appeared to Revenue that the appellant Customs Broker has violated the various provisions of Customs Act and as well as the Regulations of CBLR 2018 /2013, particularly, Regulation 10(a) requiring to obtain an authorisation from the client, for whom the Customs Broker is employed as customs broker. It appeared that appellant Customs Broker has not met the proprietors of the three firms of Ahmedabad and all the correspondences, interactions in respect of the import by these firms were made with Mr. S.K. Pathan. 7. Further, Shri V.K. Sharma F Card Holder in his statement dated 22.11.2017 had, inter alia, stated that they have not taken KYC details from the importers and such details were submitted through S.K. Pathan and further he did not meet the proprietors of the three firms personally. 8. Further, it appeared that there is violation of Regulation 10 (d) (e) of CBLR‟ 18, which requires the customs broker to advise his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant attended inquiry proceedings before the Inquiry Officer, who after hearing the appellants, submitted inquiry report along with prayer of appellant for cross examination including his retractions made before the court of ACJM, Ahmadabad, in the Bail application filed by Shri V.K. Sharma. The Inquiry officer was pleased to confirm the charges as proved. The ld. Commissioner read with the report of the Inquiry Officer and without extending the benefit of cross examination, nor considering the retractions made by the appellant, was pleased to pass the impugned order of revocation with penalty and seizure of whole security deposit, on the following findings:- 10.1 The Customs Broker had not obtained authorizations from the proprietors of M/s. R.M. International, M/S. T.G. Enterprise, Ahmedabad and M/S. M.M. Enterprise, all three of Ahmedabad, to work as Customs Broker. He did not meet the proprietor of these firm(s), and all the correspondence / interaction in respect of the import of Areca nuts and Black Pepper were made with Shri Sarfaraz Khan Pathan. The CB had taken KYC details in respect of the above three firms from one Shri Sarfaraz Khan Pathan; and did not meet the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant documents and RUDs. Further, there is no relied upon documents in the show cause notice . It was further alleged that even the Adjudicating Authority was not in possession of the relevant documents, if any, including the relied upon documents referred to in the show cause notice. Failure to provide the relied upon documents by the ld. Commissioner has resulted in violation of the principles of Natural Justice, and thus impugned order is in the teeth of the Ruling of the Hon ble Supreme Court in the case of Dhakeshwari Mills Ltd. Vs. CIT 1955 27 ITR 126 (SC) = 1955 SCR (1) 941. 12. It was further submitted that there is no requirement in law for a Customs Broker to meet an importer in person and obtain KYC documents in person. Further, there is no charge made in the show cause notice that appellant was required to meet an importer in person and obtain KYC in person nor is there any finding in the impugned order as to if any of the COO‟s has been found false or forged. Ld. Counsel further urged that, the Tribunal had called for the adjudication file of the Commissioner and on perusal of the same, it is revealed that the Adjudicating Authority did not have the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.11.2018 DRI, Bangalore Zonal Unit, wherein the appellant is a co-noticee along with the importers. In support of the allegation that the appellant Custom Broker was the master mind in the fraudulent import of areca nuts and black pepper, by mis-declaring the same as of Sri Lankan origin and thus, facilitated the mis-use of ISFTA/SAFTA Agreement. The appellant CHA is the common CHA for the parties at Ahmedabad and Bangalore. Further, reliance is placed on the confession made by Shri V.K. Sharma during investigation, and it is urged that admitted facts need not be proved. 16. Rebutting the contentions of the Revenue, Counsel for the appellant points out that the submissions of the ld. DR are based on the show cause notice in different proceedings under the Customs Act, which has been issued after issue of the show cause notice in these proceedings. Further, none of these subsequent show cause notice were made available before the Adjudicating Authority. These have been brought on record by the appellant in appeal paper book, in support of their contention. 17. Having considered the rival contentions and on perusal of the records, we find that the respondent commissioner pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bangalore DRI. The Suspension order and the SCN do not provide the detail of the said imports. Further, the SCN to those importers was issued after the issue of SCN to the appellant CB, thus cannot be read in evidence, unless the facts were incorporated in the SCN. 21. Further, we take notice as submitted by the counsel for the appellant that the show cause notice issued by the DRI, Ahmedabad Zonal Unit and DRI, Bangalore Zonal Unit, is still pending adjudication, which is confirmed by the ld. DR. We further take notice that revocation of the CB licence of the appellant directly effects to their Right to Livelihood. It is further found that the respondent commissioner has passed the impugned order in a mechanical way, in violation of the principles of natural justice. 22. Accordingly, for the reasons and observations recorded above, we set aside the impugned order-in-original and remand the matter to the Respondent Commissioner for de novo adjudication after providing RUD‟s, giving opportunity to cross-examine the witness of Revenue, in accordance with law. Such re-adjudication is directed to be completed expeditiously, preferably within four months from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
