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TMI Blog2023 (5) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation 14 of the CBLR, 2018. (iii) The CB License No.11/396 is ordered to be revoked under Regulation 14 of the CBLR, 2018. (iv) I hereby order that the CB surrender the original License as well as all the 'F', 'G' & 'H' cards issued there under immediately This order is passed without prejudice to any other action which may be taken against the Customs Broker and their employees under the Customs Act, 1962, or any other act for the time being in force in the Union of India." 2.1 Appellant is a Customs Broker having Customs Broker Licence No. 11/396 (PAN No. AAAFA3866E). Information was gathered that an import consignment of toys with misdeclaration and concealment of cosmetics inside was attempted to be cleared for home consumption with intent to evade customs duty and other statutory provisions by M/s. Global Enterprises under Bill of Entry No. 6026676 dated 18.04.2018 at Navkar Corporation Ltd., JNPT, who has filed the said Bill of Entry. Proceedings were initiated against the importer and against the appellant - Customs Broker for revocation of their licence. The licence of the Customs Broker was suspended vide order No. 42/2020-21 dated 16.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Copy of Offence Report dated 21/01/2021 relied upon by the AR has never been supplied. The impugned Order dated 28.01.2022 revoking the Appellants' license is challenged on the following grounds: (A) On page 141 the order refers to statement dated 6.8.2018 of Mohd. Arfat Mukadam, Director of the Appellants, which inter alia reads as under: (i) He was Introduced in person to Sahdeo Rade, Proprietor of Global Enterprise and to Irfan Popatiya (Power of Attorney) by Santosh Gunjal; (ii) The KYC documents, etc. were given to him by Irfan Popatiya; (iii) This consignment is the first and only consignment with Global Enterprise;. (iv) He was not aware that cosmetics were concealed in the container. (B) In his statements (on page 142) Santosh Gunjal confirmed he had introduced Irfan and IEC holder of Global Enterprise to Mukadam. (C) Thus the findings from page 161 confirming the charges under Regulations 10(a), (d), (e), (m) and (n) of the CBLR, 2018 based on Rade's unverified statements are not convincing. (D) In the instant case the learned Pr. Commissioner of Customs (General) has not given any finding on the issue of cross-examination. Instead he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected to the Inquiry Officer nor was the CB forthcoming to either attend the PH or submit supporting documents, until withdrawal of the notice by the Principal Commissioner of Customs. In the event of no such withdrawal and given the limitations of time, but keeping in view of the requirements of providing opportunity of being heard (which were not attended by the CB) and given the non-presentation of witnesses for cross-examination, it is to state that the findings are based on the available documents at hand i.e. the offence report, statements of Arjun Pilane and Pramod Bhor, the Prohibition order and the submissions of the CB, read with CBLR, 2013." 24. Therefore, it is clear that there was a gross violation of the principles of natural justice. Unfortunately for the Department, the principles of natural justice have also been in-built into Regulation 20(4). Therefore, the Enquiry Officer could not have violated the mandate of law. It would have been a different matter if the Enquiry Officer had chosen not to rely upon the statements of those two witnesses, but to proceed only on the basis of other available documents. But in more than one place, the Enquiry Officer affirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 2018, with pending Inquiry being initiated by the Inquiry Officer Shri Rajesh Munde, Deputy Commissioner of Customs appointed in the case. 35.6 Inquiry report dated 16.09.2021 was received and the charges framed against CB i.e., violation of Regulation 10(a), 10(d), 10(e), 10(m) and 10(n) of the CBLR, 2018 were held 'Proved' in the Inquiry Report. 36. I now examine the charges in the SCN sequentially. It has been alleged that CB did not exercise due diligence in discharging their obligation as required under Regulation 10(a), 10(d), 10(e), 10(m) and 10(n) of the CBLR, 2018. 36.1 In respect of Regulation 10(a) of CBLR 2018 it has been alleged that the CB shall obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be. It is noticed that during course of investigation it was revealed that as per statement Shri Mohammed Arfat Mehmood Mukadam, Director and G-Power of Attorney holder of the Customs Broker M/s. Hayatt Shipping Pvt. Ltd. recorded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G-Power of Attorney holder of the Customs Broker M/s. Hayatt Shipping Pvt Ltd., never met Shri Sahdeo Bapurao Rade. It is on record that there was no interaction between the Customs Broker and the Shri Sahdeo Bapurao Rade, proprietor of M/s. Global Enterprises so that the Customs Broker could give proper advice. Hence, I hold that the CB failed to fulfill the obligation of Regulation 10(d) of CBLR, 2018. 36.3 In respect of Regulation 10(e) of CBLR 2018 it has been alleged in the Show Cause Notice that the CB did not exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. I find that the CB has not interacted directly with the IEC holder. The documents for clearance purpose were received by the CB through middlemen viz. Shri Santosh Dagdu Gunjal and Shri Chandrashekar Chandrakant Rane, who were neither importer nor authorized representative of the importer. Thus, the CB has failed to verify the authenticity and genuineness of the proxy importer M/s. Global Enterprises. Therefore, it is clear that the CB allowed unauthorized person Shri Amjad Mohd. Farukh Bakali to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mukadam further stated that he personally verified the address of Shri Sahdeo Bapurao Rade, Proprietor of M/s. Global Enterprises whilst the IEC holder Shri Sahdeo Bapurao Rade, proprietor of M/s. Global Enterprises has denied of having applied for any Importer Exporter Code (IEC), Shri Sahdeo Bapurao Rade further stated that he has not authorized anybody to carry out any import-export business in his name. Shri Santosh Kashiram Kadam in his statement recorded on 31.08.2018 under Section 108 of the Customs Act, 1962 inter alia stated that he does not know M/s. Global Enterprises (Service Tax Registration Number AHAPK2065NSD001) and does not have any relation/concern/business transaction with it; that there is no office of M/s. Global Enterprises (Service Tax Registration no. AHAPK2065NSD001) in his residential address at BEST quarter at C/10, BEST Staff Quarter, Jerbai Wadala Road, Near Cancer Society, Parel, Mumbai, Maharashtra - 400012. From this it became evident that the CB M/s. Hayatt Shipping Pvt. Ltd. CB No (11/396) have not been careful and not diligent in undertaking the KYC of the background of M/s. Global Enterprises and accepted documents from the persons who were neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inoperative for him to personally examine the said persons in the course of Inquiry. The Inquiry Officer failed to appreciate that in case there were contradiction between the depositions of SahdeoRade (IEC Holder) and The CB, those contradictions could only have been resolved by rejecting the statements and making an honest attempt to arrive at the truth. The contradictions cannot be resolved by conveniently rejecting the version of the CB. That exposes the bias on the part of the Inquiry Officer against the CB. It also proves that he was in a tearing hurry to decide the case by throwing the principles of natural justice to the winds. The Inquiry Officer failed to appreciate that the statements under section 108 are recorded by the investigating agency for the purpose of adjudication of duty, fine and penalty. On the other hand, the CBLR proceedings affect the likelihood of the CB and directly impact the fundamental rights guaranteed under the Constitution of India to carry on business, trade and occupation. Hence, the burden is on the department to prove and establish each charge with credible documentary evidence and oral evidence. A shortcut approach by taking a stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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