TMI Blog2021 (6) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent paras 10 and 11, it would be more clear that the certificate issued by the Chartered Engineer, shall in all circumstances whether given by Port of Loading or in India be accepted and no Customs house should insist that inspection/ appraisement report should be obtained from a particular Chartered Engineer. Keeping in mind the guidelines and applying the same to present case, it was found that Shri Anil Vohra is an empanelled Chartered Engineer by the customs authorities to determine the value of second hand imported machinery in the Mumbai Custom House. Neutral party - HELD THAT:- The adjudicating authority confirmed the charges against the appellant-Customs Broker observing that since Chartered Engineer Shri Anil Vohra is also a consultant to one of their related company, therefore, not a neutral party to the transaction of import. The said interpretation is fallacious. The inspection/appraisement of the second hand machinery to ascertain its value by a neutral party definitely refers to a person, who is not connected with the importer or the seller of the imported goods, precisely with the transaction of the imported goods whose value he is asked to determine. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the customs authorities at the time of inspection, valuation and assessment of the used Tug KNK Disha and thereby contravened the provisions 11(d), 11(e) and 11(f) of CBLR, 2013. Also, in the show-cause notice it is proposed forfeiture of security deposit and revocation of the license under regulation 18 of the CBLR, 2013. An Inquiry Officer was appointed and necessary inquiry was conducted under the CBLR, 2013 by the Inquiry Officer. After a detailed inquiry, the Inquiry Officer arrived at the conclusion that violation of Regulations 11(d), 11(e) and 11(f) of CBLR, 2013 by the appellant are not proved. However, on adjudication, the learned Commissioner disagreed with the inquiry report and held that charges leveled against the appellant alleging violation of Regulations 11(d), 11(e) and 11(f) of the CBLR, 2013 are established and consequently directed forfeiture of security deposit, imposed penalty of ₹ 50,000/- and also directed revocation of the license under Regulation 18 of the CBLR, 2013. Hence, the present appeal. 3. Elaborating the facts, learned Advocate Shri Anil Mishra for the appellant has submitted that on the basis of documents received from the importer M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter and the consignment imported. Further, Shri Anil Vohra is an empanelled Chartered Engineer with the Mumbai Customs to examine and provide valuation report is thus a qualified neutral party for the job, hence no violation was committed by them. He has vehemently argued that the valuation report prepared by Shri Anil Vohra is not challenged by the Department alleging bias or incorrect. 4. He has submitted that the observation of the adjudicating authority that the F, G H card holder employees of the appellant have admitted to the breach of regulations by not intimating the conflict of interest as alleged in the show-cause notice is not correct inasmuch as during the course of cross-examination these employees have categorically denied to such admission before the adjudicating authority. 5. Further he has submitted that imposition of penalty under the Customs Act, 1962 is a different proceeding for breach of various regulations under CBLR, 2013. Therefore, penalty imposed by the adjudicating authority which is under challenge before higher forum cannot be the basis for taking action against the broker under CBLR, 2013 being a settled principle of law. He has further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Broker contravened the Regulations 11(d), 11(e) and 11(f) of CBLR, 2013. The facts not in dispute are that M.s KNK Ship Management imported one unit of used second hand self propelled Tug KNK Disha against Bill of Entry No. 9479981 dated 27.4.2017. For clearance of the same, they have engaged the appellant to complete all the formalities with the Custom House including engaging empanelled Chartered Engineer Shri Anil Vohra to assess the value of the used self propelled Tug KNK Disha . On the basis of the valuation report of the Chartered Engineer Shri Anil Vohra and the documents namely, purchase invoice, agreement etc. furnished by the importer M/s KNK Ship Management, the appellant submitted papers with the Customs authorities for clearance of the said used Tug KNK Disha . Later it was alleged by the Customs authorities that the value declared by the importer to the Customs authorities is lower than the value declared in the documents submitted earlier to the Bank. Investigation was initiated and on completion of the same, show-cause notice was issued for enhancement of the value of the said second hand vessel. Consequently, a separate notice was also issued to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification issued by the Board. The relevant portion is reproduced as below: - Circular No. 25/2015-Cus., dated 15-10-2015 F.No. 450/2/2015 - Dir( Cus )( Pt) Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Valuation of second hand machinery - Regarding. The Board has received representations from other Ministries, trade bodies and traders regarding issues arising from the interpretation of Board's Circular No. 4/2008-Cus., dated 12th February 2008 [2008 (222) E.L.T. (T15)]. The circular requires that field formations rely upon a chartered engineer's inspection report while valuing imports of second hand machinery and that inspection/ appraisement reports issued at the port of loading should be accepted. The circular also states that there is no need to specify the agencies whose certificates alone would be accepted. It has been ascertained from field formations that the present practice in this regard is that if an importer produces a chartered engineer's appraisement report issued at the load port, with the ingredients indicated in para 8 (a) of the Circular 4/2008-Cus., the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond had machinery imported adopted at different Customs Houses. 14. It seems that the adjudicating authority in the impugned order merely carried away by the use of the expression neutral party mentioned in para 9 of the said Circular but not examined its contextual use by reading the circular as a whole. A plain reading of para 9 of the Circular dated 15.10.2015, makes it crystal clear that the procedure for computing the value of second hand machinery should reflect the commercial reality resulting into a fair value and needs to be arrived through uniform practice by all custom houses. To achieve such uniformity, it has been emphasized that inspection/ appraisement report should be from a qualified neutral party. Further reading it along with subsequent paras 10 and 11, it would be more clear that the certificate issued by the Chartered Engineer, shall in all circumstances whether given by Port of Loading or in India be accepted and no Customs house should insist that inspection/ appraisement report should be obtained from a particular Chartered Engineer. Keeping in mind the above guidelines and applying the same to present case, we find that Shri Anil Vohra is an empanelle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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