TMI Blog2021 (10) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ot attract such harsh punishment of revocation of license or forfeiture of security deposit. The punishment by way of penalty would meet the ends of justice. The appellant has suffered and paid the penalty of ₹ 25,000/- imposed under sec. 158(2)(ii) of Customs Act, 1962 in the earlier proceedings. It is submitted by the learned counsel that such penalty has attained finality as the appellant did not prefer any appeal.. On such score, a further penalty of ₹ 50,000/- imposed under the Customs Broker Regulation is unwarranted. The same requires to be set aside - appeal allowed. As per P.V. Subba Rao, There is no provision for imposing any penalty under Section 158 itself. It only enables the Central Government to make Rules or the Board to make Regulations which may provide for imposition of penalty. The Adjudicating Authority has no power under this Section. Though such penalty was imposed by the adjudicating authority in the earlier proceedings and was also paid by the appellant, it is important to clarify this legal provision - Appeal allowed. - Customs Appeal No.42680 of 2018 - Final Order No. 42365/2021 - Dated:- 5-10-2021 - Ms. SulekhaBeevi C.S., Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 114(iii) and penalty under section 158(2)(ii) of the Customs Act should not be imposed. (c) On 3.11.2017, Order in Original was passed by the adjudicating authority (Joint Commissioner of Customs, Nhava Sheva) by which the proposal against the appellant for imposing penalty under section 114(iii) of the Customs Act, 1962 was dropped. However, penalty of ₹ 25,000/- under section 158(2)(ii) of the Customs Act, 1962 was imposed. On 24.11.2017, the appellant paid the penalty as against the said order. (d) Subsequently, on the basis of the same incident, the present Show Cause Notice dated 4.4.2018 was issued by the Chennai Customs Commissionerate invoking Regulation 20(1) of CBLR, 2013. The allegation in the present Show Cause Notice is that the appellant failed to fulfill their responsibilities in terms of Regulation 11(d), (e), (n) and Regulation 17(9) of the CBLR, 2013. Pursuant to the inquiry conducted, in accordance with the Regulations, the report of Inquiry Officer dated 31.7.2018 was submitted and a copy was furnished to the appellant on 31.8.2013. In the said inquiry report, the Inquiry Officer observed that the appellant has not violated the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons made by the exporter and that he was not aware of the mischief done by the exporter to claim excess drawback. Only on the basis of the test reports of the Textile Committee and the market inquiry, the appropriate classification as well as excess drawback claim was ascertained. 5. The adjudicating authority in the earlier proceedings has categorically held that the appellant had no role in the misdeclaration of the goods or attempt to claim higher drawback. The adjudicating authority therefore dropped the penalty proposed in the Show Cause Notice under section 114(iii) of the Customs Act, 1962. However, it was held by the adjudicating authority that the employee of the appellant Shri Bhagwan Patil had filed a checklist of the 12 shipping bills on ICEGATE from his office on instructions from the Power of Attorney holder of the appellant and that Shri Bhagwan Patil did not hold any customs pass or any qualification under CBLR 2013 for attending to such work pertaining to clearance of cargo in customs. For this reason, that appellant did not engage qualified persons for attending to the work, a penalty of ₹ 25,000/- was imposed upon the appellant for violation of the Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the merits of the case, the learned counsel submitted that the Inquiry Officer has held that the appellant has not violated the provisions of Regulation 11(d), (e) and (n) of the CBLR, 2013. The only observation made by the Inquiry Officer is that there was lack of effective supervision by the appellant as Shri Bhagwan Patil who did not have necessary qualification was allowed to deal with activities relating to the filing of the shipping bills. The statement of Shri Bhagwan Patil who is the employee of the appellant was recorded on 4.5.2017. He stated that he was working as a document clerk for the appellant. On receiving instructions from Ellish Paul Parampog and on receipt of the documents with respect to export consignments, he had processed and filed the shipping bills through ICEGATE from their office with respect to the export consignments of M/s. Neel Exim. The learned counsel asserted that shri bhagwan Patil acted as per instruction of appellant and therefore cannot be said that there is no effective supervision. The adjudicating authority in the earlier Order in Original dated 30.11.2017 has categorically held that the appellant has filed the documents with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial on record to show culpability and wantonness on the part of the appellant which alone would make them liable for penal action. Mere negligence per se in carrying out certain task entrusted is not sufficient to invoke penal provisions under the Act. 12. He adverted to the present Show Cause Notice dated 4.4.2018 and submitted that the adjudicating authority has been carried away by the averments in the Show Cause Notice at para 27 which refers to two other Show Cause Notices issued to the appellant. Another Show Cause Notice dated 19.12.2017 was issued to the appellant which culminated in Order in Original No. 63714/2018 dated 4.6.2018 wherein penalty of ₹ 50,000/- was imposed for the alleged infraction of the provisions of CBLR, 2013. The appellant has preferred an appeal against the said order and the same is pending before the Tribunal as Appeal No. C/41815/2018. When such proceedings have not attained finality, the adjudicating authority ought not to have considered such facts for arriving at the conclusion to revoke the license of the appellant. 13. In any case, the alleged infractions are not so grave so as to impose harsh punishment of revocation of licens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier Show Cause Notice dated 22.8.2017 issued to the appellant under section 124 of the Customs Act, 1962. The said proceedings culminated in a finding that the appellant has allowed Shri Bhagwan Patil who does not possess proper qualification to deal with customs clearance activities and thus failed to comply with CBRL2, 2013 for which penalty of ₹ 25,000/- was imposed under section 158(2)(ii). The very same allegations have been raised in the present Show Cause Notice dated 4.4.2018. The very same finding has been arrived that the appellant allowed Shri Bhagwan Patil, a person without proper qualification to do activities relating to customs clearance and thus violated Regulation 17(9) of CBLR for which however now the license has been revoked along with forfeiture of security and penalty of ₹ 50,000/-. 17. For better understanding of both proceedings, the relevant para in the Show Cause Notice issued by the Nhava Sheva Commissionerate is reproduced as under:- 7.13 As per sub regulation 11 of Customs Brokers Licensing Regulation, 2013:- (b) Transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the part of Customs Broker,M/s.Liyakath Shipping and Logistics Pvt. Ltd. (11/2012). Their timely interventions would have averted the attempted case of availment of drawback and ROSL benefits. By the said acts of commission and omission, they have rendered themselves to penalty in terms of Section 114 (iii) 158 (2) (ii) of the Customs Act, 1962 and for appropriate action under Customs Brokers Licensing Regulation 2013. xxxx xxxx xxxx xxxx Findings xxxx xxxx xxxx xxxx 16. I further find that Mr.BhagwanPatil filed the checklist of the said twelve Shipping Bills ICEGATE from his office on instructions from Mr Ellish Paul Parampog and that Mr BhagwanPatil does not hold any Customs Pass or any qualification under Customs Brokers Licensing Regulation 2013 (CBLR, 2013) for attending the work pertaining to clearance of cargo through Customs. Thus, I find that M/s.Liyakath Shipping and Logistics Pvt. Ltd., Customs Broker, is liable for imposition of penalty under Section 158 (2)(ii) of the Customs Act, 1962. I am not inclined to penalise the Customs Broker, M/s.Liyakath Shipping and Logistics Pvt. Ltd. under Section 114 (iii) of the Customs Act, 1962, as the Customs Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r omission involving the Customs Broker at the other customs station. The Tribunal held that such simultaneous action for the very same act, omission is not contemplated at the other customs station as it would amount to double jeopardy. The fact presented by the case on hand are slightly different. As noticed above, the allegations and findings in the earlier proceedings as well as the subsequent proceedings are entirely the same. The difference is only on the punishment imposed. In the earlier proceedings, for the very same infraction, the adjudicating authority has imposed only penalty of ₹ 25,000/-. In the subsequent proceedings, for the very same infraction, the adjudicating authority ordered to revoke the license and forfeit security deposit of ₹ 25,000/- besides imposing penalty of ₹ 50,000/-. The principle of autrefois convict called double jeopardy is enshrined in Article 20(2) of the Constitution of India. No person shall be prosecuted and punished for the same offence more than once. Although the learned counsel for appellant has put forward this plea, in our view, the facts do not give rise to a situation of double jeopardy in the strict sense. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings for the very same infraction before the Nhava Sheva Commissionerate. We then have to hold that the violation, in the background of this case does not attract such harsh punishment of revocation of license or forfeiture of security deposit. The punishment by way of penalty would meet the ends of justice. The appellant has suffered and paid the penalty of ₹ 25,000/- imposed under sec. 158(2)(ii) of Customs Act, 1962 in the earlier proceedings. It is submitted by the learned counsel that such penalty has attained finality as the appellant did not prefer any appeal.. On such score, a further penalty of ₹ 50,000/- imposed under the Customs Broker Regulation is unwarranted. The same requires to be set aside which we hereby do. 25. From the foregoing, we hold that the impugned order cannot sustain. The same is set aside. The appeal is allowed with consequential relief if any. (Pronounced in open court on 05.10.2021) P.V. Subba Rao 26. I concur with the order of Member (Judicial) except with respect to the following: Para 21, inter alia, states as follows: The earlier show cause notice dated 22.08.2017 is issued under Section 124 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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