9911796707
TMI Blog2021 (6) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... and later it was investigated by ACIU, Meenambukum Airport, Chennai resulting into seizure of 40.370 kgs of white crystalline powder, suspected to be "Pseudo Ephedrine" valued at Rs. 32,29,600/- concealed in the declared cargo, namely 'Chow Chow'. Consequently, statements of various persons were recorded including Shri M. Amrithalingam, Branch Manager of appellant at Chennai, Shri V. Ganesan S Variava Nadar, Power of Attorney Holder (PoAH in short) of the appellant and Shri Sudalaikannu P Nadar, Director of the appellant and on conclusion of the investigation Show Cause Notice was issued to the Exporter and other proposing actions under various provision of the Customs Act,1962. The CB was also prohibited to operate at any of the Customs Commissionerate under Chennai Customs zone by an order dt.23.6.2015 under Regulation 23 of CBLR,2013 with immediate effect, which later on adjudication, was confirmed by Commissioner of Customs, Chennai-VIII vide Order dt. 29.7.2015. Taking cognizance of the said Order of the Commissioner of Customs, Chennai proceeding was initiated against the appellant at Mumbai by issuing a Notice on 02.5.2016 under Regulation 20 of CBLR, 2013 alleging violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that the appellant did not possess the required authority letter from the exporter as it was submitted subsequently during the course of adjudication proceedings before the adjudicating authority as well as appellate authority, hence the same cannot be the basis to confirm allegation of violation of Regulation 11(a) of the CBLR, 2013. In support, he referred to the authorization letter dated 05.10.2014. 5. The learned Advocate Shri P.K. Ethirajan for the appellant further disputing the charge of violation of Regulation 11(d) has submitted that the offending goods namely, "Pseudo Ephedrine" had been concealed inside the export cargo namely, 'Chow Chow' (fresh vegetables); it was attempted to have been exported by the exporter illegally; until it was detected by the Air India Security Staff and later on investigation by the ACIU, Chennai, the said fact was not known to the Appellant. It is his contention that out of 150 cartons, only in 53 cartons of the consignment contained the offended goods, which was concealed and the concealment was detected by the Air India Security Staff when it passed through the Security Scanner Device. Thus, the appellant in no way was aware of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata), Jaiswal Import Cargo Services Ltd. Vs. CC, New Delhi - 2019 (370) ELT 1366 (Tri.-Del.), Exim Cargo Services Vs. Commissioner of Customs,2019 (368) ELT 1024(Del.), N.T.Rama Rao & Co. CC, Chennai -2020 (371) ELT 789(Tri.-Chennai). Further, distinguishing the judgment of Hon'ble Supreme Court in K.M. Ganatra & Company's case referred by the Revenue, he has submitted that in the said case the CHA was a regular offender, accordingly, the punishment/penalty imposed against the CHA was upheld. However, in the present case, there was no allegation of breach of any of the Regulations as a Customs Broker in the past against the appellant. Hence, the said judgment is not applicable to the facts of the present case. 7. Ld. A.R. for the Revenue Shri K.K. Srivastava, Additional Commissioner, reiterates the findings of the learned Commissioner. Referring to the findings of the learned Commissioner, he has submitted that in their statements Shri M. Amrithalingam, Branch Manager, Shri V. Ganesan, PoAH, have categorically admitted that the exporter has not authorized the appellant to file the shipping bills and handle customs documents. The said statements were never challenged nor retrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er various provisions of CBLR, 2013 as directed in the Order impugned. The undisputed facts are that the appellant filed shipping bill for export of 'Chow Chow' (fresh vegetables) for the exporter M/s Pure Food Products. During the course of X-ray screening of the consignment initially by the Air India authority noticed concealment of white crystalline powder and intimated the Customs Department accordingly, who later initiated investigation, by opening all the 150 cartoons, and after necessary test in presence of the exporter and others, seized the entire quantity of 40.370kgs. white crystalline powder suspected to be Pseudo Ephedrine found in 53 cartons only. The goods were seized and adjudicated by the Customs authorities at Chennai directing confiscation and imposition of penalty on various persons involved in the said act of unauthorized attempt to export of 40.370 kgs. of Pseudo Ephedrine. Alleging violation on the part of the Appellant Customs Broker, the Commissioner Customs at Mumbai initiated proceeding under CBLR, 2013 by issuing a notice to the Appellant; Inquiry Officer was appointed at Mumbai and on the basis of the said Inquiry report, in the impugned order the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed with the appeal paper book does not bear any acknowledgement from the Department; also since not produced during the course of investigation by the appellant, its authenticity could not be verified. Hence, much importance cannot be placed on the said authorization letter at this stage when the statements furnished remained unchallenged. In these circumstances, it is to be accepted that the appellant contravened the provisions of Regulation 11(a) of CBLR, 2013. 12. As far as contravention of Regulation 11(d) is concerned, the learned Commissioner reasoned that since the appellant could not produce the valid authorization for whom they were transacting the business or whom he has represented, the question of advising the said client to comply with the provisions of the CBLR, 2013 is out of question, therefore, the violation of Regulation 11(d) on the part of the Customs Broker has been established. Also, in support of the said finding, the learned Commissioner observed that the appellant had not only filed the shipping bill in question without obtaining authorization but also had filed five such shipping bills in the past of the said exporter without any authorization or verifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though we have agreed with the findings in the impugned that there are contravention of the Regulations discussed as above by the appellant Customs Broker, but no evidence is brought on record establishing the involvement of or in the knowledge of the Appellant Custom Broker the attempt to export the crystalline white powder suspected to be 'Pseudo Ephedrine' by the exporter concealing the same in the declared export cargo namely, Chow-Chow (vegetables). In these circumstances imposition of harsh penalty by revoking the license of the appellant is not warranted and hence deserves to be set aside. The common principle laid down in the afore cited judgments is unless there is a positive involvement of the Customs Broker or the acts or omissions leading to defrauding the Revenue is within his knowledge, imposition of harsh penalty by revoking the license is uncalled for and cannot be sustained and justified. This Tribunal recently in N.T. Ramarao and Co. Vs. Commissioner of Customs, Chennai(supra) expressed a some what similar view. Simultaneously, we are of the opinion that the procedure laid down under various Regulations of CBLR,2013 cannot be considered as mere technical one an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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