TMI Blog2021 (10) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry officer and the adjudicating authority notwithstanding the discussion as to whether the timelines prescribed in the said regulation are mandatory or advisory. In the instant case, the alleged offence took place in 2015 and the custom broker licence was suspended in 2019 after a period of four years. Normally, a punitive action like suspension is to be taken immediately, if the same is taken after four years, the sanctity of the same is vitiated - the custom broker has already suffered a lot. The livelihood of the custom broker and the employees dependent upon is at stake. Even if one concludes only on the basis of contradictory statement of the director of exporter, that the custom broker had initial knowledge of the actual port of discharge to be different from the port of discharge declared in the shipping bills, the punishment suffered by him for two years is enough to mitigate his violation or contravention of Regulation 11D of CBLR 2013 (now Regulation 10D of 2018). This Tribunal was consistently holding though the custom broker is cast upon the responsibility, the mitigation of the same would lie in imposition of penalty and forfeiture of the security deposit an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued to the appellant which was replied by the appellants 17-08-2020.Learned Advocate submits that no notice in writing has been issued to the appellants within ninety days from the date of receipt of the offence report as per CBLR, 2018; further, CBLR, 2018 does not provide for the issue of disagreement memo in the case where charge is not proved; the respondent cannot act in excess of in violation of the their powers; they rely on the judgement of Hon ble High Court of Bombay in the case of CC(General), Mumbai Vs. Rajan Virji Co. 2012 (283) ELT 354 (Bom) and judgment of Tribunal in the case of Manilal Patel Clearing Forwarding P. Ltd Versus CC (Gen), Mumbai 2013 (294) ELT 472 (Tri Mumbai). 3. Learned Counsel for the appellants submits that no specific instance has brought out by the department to show violation of the provisions of regulation 11(d) of CBLR 2013 (regulation 10(d) of CBLR 2018); the respondent has rejected the request for cross examination of witnesses whose statement have been referred and relied upon in the Show Cause Notice; no evidence whatsoever to prove that the custom broker failed to advise the appellants has been cited; the custom broker has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned to be Bander Abbas; they had no choice but to act as per the directions of the exporter; Shri Tushar H. Anam, partner with M/s V. Arjoon, stated on 22.10.2015 that Shri Gordhan Bhavnani, manager interacted with all the shipping lines and was knowing that the consignments of rice which were originally cleared from Customs for export to Iran were actually delivered to Jabel Ali port; this diversion of goods to Dubai after clearance for Iran was not brought to the notice of Customs authorities at the port of export. Shri Munish Bansal, Director of Bansal Fine Foods Pvt. Ltd stated on 10.02.2016 that they had not carried out any amendment in the respective shipping bill for change in the destination; the appellant had acted on the oral instructions of the exporter for the diversion of goods. 6. Learned Authorized Representative further submits that from the letter F. No. DRI/ H-CI/EN-226(INT-24)/2015/2654 dated t. 02.0.2019 submitted by CB ,it is evident from the letter that there is nothing to ascertain from the sea cargo Manifests(SCEMs) that the goods exported from Dubai to Iran had been imported from India as no Bills of Lading Numbers/ Import declarations regarding im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation was declared as Iran instead of UAE), landing certificate, remittance received in INR, etc but merely based on the statements of Shri Tushar H. Anam, partner and Shri Gordhan Bhavani, Manager of M/s. V. Arjoon; he finds it difficult to remember the provisions of the Acts, Rules and Regulations related to Customs Clearance work and is not in a position to guide his clients; thus, the Inquiry officer has incorrectly concluded that the CB has not violated the Regulation 10(d) of CBLR 2018 as leveled by the Show Cause Notice dated 16.10 2019. He submits that the Customs Broker, in spite of having prior information of diversion of goods, did not bring it to the knowledge of the Customs Authorities which is a clear violation of Regulation 11(d) of CBLR,2013 (now Regulation 10(d) of CBLR 2018); the matter could not have seen the light but for investigation by DRI. He submits that there is no proof that it was an unintentional and bona fide error on their part. 9. Learned Authorized Representative submits that Hon ble Supreme Court, in Civil Appeal No.2940 of 2008 ( CC V/s K.M. Ganattra Co) and CESTAT in Noble Agency Vs CC, Mumbai held that A Custom Broker occupies a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Regulation 11D of CBLR (currently Regulation 10D of CBLR 2018). A perusal of the said Regulation would be beneficial to decide whether or not the appellants have violated the same. Regulation 10(d) of CBLR,2018. The said Regulation reads as follows: Regulation 10. Obligations of Customs Broker. - A Customs Broker shall - (d) advise his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non- compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; 12. We find that the enquiry officer found that the custom broker mentioned port Jebel Ali as port of discharge in the shipping bills as informed by the exporter. He also found that there is no iota of evidence that the fact of discharge of the goods at Bandar Abbas (UAE) was known to the custom broker. He relies upon the statement dated 10.03.2017 of Director of exporter that the destination was changed after finalization of the shipping bills and they have never informed the CHA about the change of destination before filing of the documents and that they themselves k ..... X X X X Extracts X X X X X X X X Extracts X X X X
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