TMI Blog2022 (5) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Broker. His case is that some Vishal has given him the documents. He has not taken any steps to establish this. He could have cited Vishal as a witness on his side and requested to issue summons for examination of such person - steps for filing the Bill-of-Entry would not have taken place unless the documents were handed over by the appellant herein. The goods are counterfeit and have been confiscated. It is also alleged that he has taken back the documents from the Customs Broker. The findings of the authorities below, that the appellant has acted in relation to improper importation of goods, does not call for interference. However, in the present case, he had no liability to pay duty. The penalty of Rs.7,00,000/- imposed on Shri C. Solomon Selvaraj is on the higher side and requires to be reduced. Appeal allowed in part. - C/40356 & 40855/2021-SM - FINAL ORDER NOs. 40200-40201 / 2022 - Dated:- 19-5-2022 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) Dr. S. Krishnanandh, Advocate for the Appellant (in Sl. No. 1) Smt. L. Maithili, Advocate for the Appellant (in Sl. No. 2) Shri R. Rajaraman, Assistant Commissioner (Auth. Rep.) for the Respondent O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Notice was issued to the appellants along with others proposing confiscation of the goods, and proposing to impose penalties. After due process of law, the original authority passed the following order:- ORDER i. I hold that 12436 pairs of imported Shoes bearing the brand names Nike, Adidas and Reebok, Puma with a total Value of Rs. 30,97,636/- covered under Bill of Entry No. 4525203 dated 22.12.2017 bearing the Registered Trademark of M/s. Nike Innovate C.V., M/s. Adidas international B W, M/s. Adidas AG M/s. Reebok International Limited, M/s. Puma SE are prohibited goods under Section 11 of the Customs Act, 1962 read with Trade Marks Act, 1999 and Intellectual Property (Imported Goods) Enforcement Rules, 2007 and Section 3(3) of Foreign Trade (Development and Regulation) Act, 1992. ii. I confiscate the 12436 pairs of imported Shoes bearing the brand names Nike, Adidas, Puma and Reebok under Section 111(d) and 111(l) of Customs Act, 1962 and be dealt with in manner prescribed under IPR Rules, 2007 notified vide Notification No. 47/2007-Cus., dated 08.05.2007read with Circular No. 41/2007-Cus., dated 29.10.2007. iii. I confiscate the 410 pieces of non-IPR i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use Notice under the CBLR, 2018. The said Show Cause Notice culminated in the passing of Order-in-Original No. 68337/2019 dated 03.04.2019 where in the Adjudicating Authority held that there is no evidence that the appellant and importer were sharing benefits out of fraudulent imports. The Adjudicating Authority refrained from revoking the licence and also lifted the order of suspension issued under Regulation 14 of the CBLR, 2018. A penalty of Rs. 50,000/- was imposed. 9. The Learned Counsel for the appellant argued that when penalty has been imposed under the Regulations for the violations of CBLR, a further penalty cannot sustain on the very same allegations under Section 112(a) of Customs Act. 1962. In various decisions it has been held that a Customs House Agent / Customs Broker are only processing agents of documents for clearance of goods and they are not inspectors to weigh the genuineness of transactions and therefore, has no obligations to look into the information from the exporter/importer. He relied upon the following decisions:- i) M/s. Ashiana Cargo Service v. Commissioner of Customs (I G) - (Del) [2014 (302) E.L.T. 161] ii) M/s. Kunal Travels (Cargo) vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBLR, 2018) has observed in paragraph 33, as under:- 33. However though contravention of the provisions of Regulation 10 (a), 10 (b) and 10 (n) of Customs Brokers Licensing Regulations, 2018 (read with Regulation 11(a), 11(b), 11(n) of CBLR, 2013), by the CB stand proved and CB is definitely liable for penalty for their omissions commissions. But considering only two Bills of Entry in the case, and Customs Broker License is under suspension for more than 7 months, they are jobless since then along with their staff and main case not yet adjudicated. In my opinion, revocation of License will be very harsh on the Customs Broker. There is as such no evidence that they were sharing the benefits of the fraudulent imports. (Emphasis supplied) 16. It has been categorically held that there is no evidence that the appellant had any arrangement of sharing benefits of fraudulent exports. On such score, I have to say that the Department has failed to establish the ingredients under Section 112(a) of the Customs Act, 1962 against the appellant. The penalty imposed under Section 112(a) on the appellant, in my view, is not justified and requires to be set aside, which I hereby do. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed that the appellant has not done any act related to the goods and therefore, penalty under Section 112(a) will not lie. 22. It is brought out from facts that Shri Solomon is the person who had acted as an intermediary for handing over the documents to the Customs Broker. His case is that some Vishal has given him the documents. He has not taken any steps to establish this. He could have cited Vishal as a witness on his side and requested to issue summons for examination of such person. Section 112(a) of the Customs Act, 1962 reads as under: Section 112. Penalty for improper importation of goods, etc. - Any person, - (a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or 23. After appreciating the facts and evidence placed before me, I am convinced that steps for filing the Bill-of-Entry would not have taken place unless the documents were handed over by the appellant herein. The goods are counterfeit and have been confiscated. It is also alleged that he has taken back the documents from the Customs Broker. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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