TMI Blog2020 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... Even a copy of the statement was not supplied to the appellant. The appellant have produced copy of authorisation given to them by M/s Hindustan Exim India, to act as their custom broker - thus, no show cause notice appears to have been issued in the alleged offence under the Customs Act so far. Thus, the adjudicating authority have accepted the report of the inquiry officer in a mechanical way, without application of mind. The respondent Commissioner to restore the Customs Broker license of the appellant within a period of thirty days from the date of receipt / service of this order - appeal allowed - decided in favor of appellant. - Customs Appeal No. 51143 of 2019 - FINAL ORDER NO. 50732/2020 - Dated:- 31-7-2020 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) MR. C. J. MATHEW, MEMBER (TECHNICAL) Shri Ramakant Gaur, Ms. Sneha Arya Ms. Shubhkriti Gaur, Advocates for the appellant Shri Rakesh Kumar, Authorised Representative for the respondent ORDER This appeal by the appellant, Customs Broker is against the Order-in-Original dated 13.02.2019 by which the Custom Broker Licence No. 34/DEL/CUS/2007 (Pan No.AAIFP4144L), valid upto 24.10.2027, have been revoke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 07.06.2018 and thereafter post decisional hearing was allowed on 18.06.2018, and after considering the written submissions dated 19.06.2018, the suspension was confirmed vide order dated 22.06.2018 under the Regulation 16(2) of CBLR, 2018. 4. It appeared to Revenue that appellant had not obtained any authorisation from the exporting firm M/s Hindustan Exim India and further allowed CB licence to be used for exporting of NDPS goods. Shri Ashish Sharma had done the online transaction using the access code of the CB without any authority, as per his statement before the Delhi Police. Further, appellant in the written submissions dated 19.06.2018 (prior to issue of show cause notice), pointed out that Customs Department have not conducted any independent investigation in the matter and have referred and relied upon the excerpts of investigation conducted by the officers of Special Cell, Delhi Police. Further, appellant CB failed to bring the matter to the notice of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs at any stage. Accordingly, show cause notice dated 30.08.2018 was issued by the Commissioner of Customs (Airport General), al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or London (U.K.) and airway bill of an international airline was found pasted on each carton. The cartons appeared to be ready to be moved for custom clearance, gate pass of the tempo for cargo complex was also found. The Delhi Police searched and on examination of the 27 cartons in a preliminary manner, found that four out of total 27 boxes contained contravened drugs. The details of which are, 3.5 lakh drug tablets namely Diazepam, Lorazepam, Nitrazepam, 1 kg. of Methaqualone drug and 900 grams of Mephedrone. FIR No. 64/2018 dated 19.05.2018 was registered with the Special Cell, Delhi by SI Somal Sharma against Shri Ashish Sharma and Shri Asim Khan for the contravention of the Sections 22, 23, 29 and 38 of NDPS Act. In the course of further investigation, the Police arrested Rajinder. 6. Shri Ashish Sharma in his interrogation by the Police inter alia stated that he worked as a Customs House Agent and was also running export firm namely M/s Hindustan Exim India for the last five years. He met Parveen Saini about a year ago and on coming to know that Parveen Saini was engaged in export of drugs and there were handsome returns, he also colluded with him to make quick money and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of principles of natural justice. Learned Counsel further urges that revocation of CB licence of the appellant is wholly arbitrary and without application of mind. 11.1 Learned Counsel further urges that the whole case of the Department is made on the basis of statement of one Ashish Sharma who have neither been examined in the proceedings under CBLR nor have been produced for cross-examination and accordingly his statement before the Police Officer is not reliable for the purposes of proceedings under CBLR, 2018. The same is also being hit by Section 24 of Evidence Act read with Section 138C of the Customs Act. 11.2 It is further alleged in the show cause notice that the appellant CB have allowed unauthorised use of his licence and contravention of the provisions of Regular 1(4) of CBLR, 2018, (i) the appellant have not obtained proper authorisation from the exporter M/s Hindustan Exim India, and have not fulfilled their obligation under Regulation 10(a), 2018 read with Regulation 11(a) of CBLR, 2013; (ii) as required under Regulation 10(b) of Regulation, 2018, the appellant was required to transact business in the customs station either personally or through an aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA can have two kind of users a principal (F Card holder) and their employee (G Card holders) (ii) Principal user is required to approve the registration of their employee, as child users. These employee users are to be disabled by the principal user as soon as employee quits. (iii) After completing the registration process successfully, the users are advised to wait for the registration request to get approved by the Department. This approval is sent by an acknowledgement e-mail with the login credentials user ID and password. (iv) An entity CB registered with Icegate website can register with only one F card holder whose name is endorsed on the Customs Broker Licence. This registration process keeps a check on impersonation and repudiation. The user is also required to upload the PAN copy and particulars are verified online by the Customs. Once the registrant affirms their data, further process of data capturing is initiated. All the users are required to use their Digital Signature Token, it is required to be uploaded at the time of registration. Further, the registered user / CHA or employee is required to upload one of the documents like, Aadhaar Card, Driving Lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cargo complex, no offence is made out under the Customs Act as Section 113(d) of the Customs Act, 1962 provides - any goods attempted to be exported or brought within the limits of any customs area for being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force shall be liable to confiscation. Learned Counsel further urges that the trap in the parking of cargo terminal within the customs area, the said contention was rejected by the Enquiry Officer observing that the contraband goods contained in 4 out of total 27 boxes / cartons had been unloaded near the tempo in the truck parking area, and the said cartons were booked for London and Airway Bill of an International airlines was found posted pasted on each carton(s). All such cartons were ready to movement for custom clearance and gate pass of the tempo was also found from them. 11.9 The Inquiry Officer have further observed that as regards involvement of the appellant CB, an attempted export of contraband goods NDPS, the said matter is under investigation by Delhi Police under the NDPS Act and further action shall be taken by the Delhi Police on the outcome of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunication with M/s Hindustan Exim India. It is urged that the same has already been submitted during the adjudication proceedings. As regards the alleged misuse by the said Ashish Sharma, it was urged that the registration process of the CB on Icegate is a onetime process and the filing of documents does not require login id and password of the CB, to obtain the shipping bill number. Thus, the allegation that appellant allowed the misuse of licence is baseless. The appellant also reiterated its request for cross-examination of Ashish Sharma and other witness, if any, relied upon by the Revenue. It was also pointed out before the respondent Commissioner that the appellant is yet to receive the RUDs (relied upon in the show cause notice and thus prejudiced from making any effective representation). 14. Learned Commissioner observed that the appellant have so far not produced any authorisation from M/s Hindustan Exim India, engaging them as its Customs Broker and further confirmed the report of the Enquiry Officer. Learned Commissioner placed reliance on the statement of Ashish Sharma before the Delhi Police. Further, as regards the prayer of the appellant for cross-examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave generated the shipping bill number and given to the said Ashish Sharma the exporter, for further use to obtain airway bill for custom clearance. There was nothing to raise the suspesion of the appellant and there is no case of any connivance made out on the part of the appellant. Further, the allegation of clearing of past consignment containing contraband goods for Ashish Sharma is vague, and have got no legs to stand. It is further urged that the appellant CB has not violated any of the Regulation of CBLR as alleged. It is also urged that the impugned order is vitiated as there is no reference to the charge sheet submitted by Delhi Police on 30.11.2018 in the facts and circumstances. Admittedly, appellant have not been made an accused by the Special Cell of Delhi Police in their charge sheet. Learned Counsel further urges that the appellant has suffered irreparable loss and injury for no fault of his. Further, reliance is placed on the following rulings:- i) Marks Logistics Mahavir Co. Building v. The Commissioner of Customs 2016 (344) ELT 519 (Tri. Bang.). ii) Ashiana Cargo Services v. Commissioner MANU/CE/0571/2012: 2014 (302) ELT 161 (Del.) iii) Kunal Trav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
