TMI Blog2022 (9) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, it has to be seen that the importer is not traceable as the company s address and GST registration shown in the documents are fake. The importer did not care to appear or attend the proceedings. He has not come forward to claim the goods. The main argument put forward by the learned counsel for appellant is that the allegations would only be violation of CBLR, 2018 and that the Customs Broker cannot be held responsible under sec. 112(a) of the Customs Act, 1962. Though it may be true that the Customs Broker acts as per the instructions of the importer, in the present case, as the importer himself is not traceable and the address as well as GST registration reflected in the documents are found to be fake, the act of the Customs Broker in filing the Bill of Entry acquires deep introspection. The Customs Broker has a very important position and has to safeguard the interest of both the importer and the Customs - The Regulation is intended to make the clearance of export and import in a hassle-free manner for both importer/exporter and the customs. The trust embedded in the Customs Broker who has been issued a licence cannot be used in a negligent manner so as to permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalties under sec. 112(a) and 114AA of the Act ibid. After due process of law, the original authority passed the following order:- 28(A). For the declared goods as detailed in the Annexure 1 of SCN:- (i) I order that the declared value of 2,63,509/- for the goods declared as Tiles and Metal Gutter be redetermined as Rs.2,72,122/- under Rule 9 of CVR, 2007. (ii) I order for confiscation of declared goods Tiles, Metal Gutter under sec. 111(m) of Customs Act, 1962 for misdeclaration and under section 119 for using items for concealing undeclared goods. (B). For the undeclared goods as detailed in the Annexure-2 of SCN: (i) I determine the value of the goods at Rs.48,24,418/- under Rule 9 of CVR, 2007 (ii) I order for confiscation of undeclared goods under sec. 111(l) of Customs Act, 1962. (iii) I give an option under Rule 125(1) of the Customs Act, 1962 to the importer to pay in lieu of confiscation redemption fine of Rs.4,80,000/- (Rupees four lakhs eighty thousand only). Once the option to redeem the goods is exercised by the importer, the importer shall, in addition, as per provisions of sub-section (2) of section 125 of the Customs Act, 1962 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled the subject Bill of Entry on behalf of M/s. Collection Garden wherein the goods were declared as Metal frame, building material Accessories, building material gutter, screw etc. . After examination of the goods, it was found that the consignment contained undeclared goods and also goods which infringed IPR. A penalty of Rs.5,00,000/- has been imposed on the appellant under sec. 112(a) of the Customs Act, 1962. He submitted that the allegation against the appellant is forthcoming from paragraph 27(n) in which it is merely stated that the appellant has violated the provisions of CBLR, 2018 as he did not verify the antecedents of the importer, correctness of the IEC number and identity of the importer. It is alleged by the department that the appellant ought to have verified the details of the importer instead of relying upon the information given by the third party and also should not have accepted the documents handed over by a third party. He argued that all these allegations / violations if any would fall only under the CBLR, 2018 and are not grounds for imposing penalty under sec. 112(a) of the Customs Act, 1962. A separate Show Cause Notice was issued to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration of goods would not have come to light if the SIIB did not examine the consignment. Further, though goods were declared as metal frame and building material etc. , only 25 cartons contained goods in the nature of which were declared. The appellant had declared 717 cartons in 140 feet container. However, on examination there were 775 cartons and 90% of the cartons contained undeclared goods. Most of these goods were branded items and counterfeit in nature. Besides misdeclaration of goods, there was infringement of IPR. The misdeclaration of goods is not minor as huge quantity of the goods are undeclared and also infringed IPR. The intention was to clear the prohibited goods and to evade higher customs duty. In the statement given by Shri S.P.R. Bhanuprasad, Managing Director of M/s. Oceanic Enterprises India Pvt. Ltd. (appellant herein) under section 108 of the Customs Act, 1962, it is stated by him that the Bill of Entry was filed on behalf of M/s. Collection Garden and the owner of the company is Shri Mohammed Alameen. He stated that he has not seen the owner and has received the documents and authorization letter from one Srinivasan. That whereabouts of the importer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undeclared goods bear the brand of reputed companies and they were found to be counterfeit products. Thus, there is infringement of IPR laws also. Though it can be seen that the appellant who is a Customs Broker has filed the Bill of Entry on the basis of the documents handed over to him by a person representing the importer, in the present case, it has to be seen that the importer is not traceable as the company s address and GST registration shown in the documents are fake. The importer did not care to appear or attend the proceedings. He has not come forward to claim the goods. 11. The main argument put forward by the learned counsel for appellant is that the allegations would only be violation of CBLR, 2018 and that the Customs Broker cannot be held responsible under sec. 112(a) of the Customs Act, 1962. Though it may be true that the Customs Broker acts as per the instructions of the importer, in the present case, as the importer himself is not traceable and the address as well as GST registration reflected in the documents are found to be fake, the act of the Customs Broker in filing the Bill of Entry acquires deep introspection. The Customs Broker has a very important p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the intelligence gathered, had rescued the goods and found the Cargo was transported based on the Annexure A containing the signature of the appellant Customs House Agent. Customs House Agent is governed by the Regulations framed by the Government in exercise of the powers conferred under the Customs Act, 1962. Therefore, misdeclaration of goods and attempt to export such goods is punishable under Section 114 of the Customs Act. A Customs House Agent, who is a party to the mis-declaration, is liable to pay penalty not exceeding three times of the value of the goods mis-declared. The first respondent Tribunal is empowered to enhance the penalty imposed, if the penalty imposed is not adequate. Further, the provisions under the Regulations to punish the Customs House Agent for violation and contravention of the Regulations is in addition to the penal provisions prescribed under the parent act, namely, the Customs Act. It is incorrect to say that the Customs House Agent is liable only under the Regulations for any violation and contravention. The licence issued to the Customs House Agent under conditions not to commit any grave offence. If action under the Regulations not suff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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