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TMI Blog2023 (5) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... curity deposit furnished by the CB, under Regulation 14 of the CBLR, 2018. (iii) The CB License No.11/2391 is ordered to be revoked under Regulation 14 of the CBLR, 2018. (iv) 1 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. 2.2 An intelligence was gathered that one M/s. Bansi Enterprises (IEC No. BSZPB3689J) had imported amino acid for agricultural use for which Bill of Entry No. 7428890 was filed through the appellant misdeclaring description, quantity and value with the intention to circumvent the applicability of mandatory registration required for the import of these goods from the Central Insecticides Board, under Section 9 of the Insecticides Act, 1968 and to evade customs duty leviable thereon. 2.3 It was also gathered that the goods have been misdeclared and the actual goods concealed from prohibited goods u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was also made a party, has clearly observed that they had no role to play in the illegal importation of the goods and they have acted on the basis of the authority letter issued to them by the importer. As the appellant was acting on the authority letter, the charge was contravention of Regulation 10(d), (e) & (m) of the CBLR, 2018 cannot be upheld. He would rely upon the Advisory No.01/2022 dated 29.12.2022 issued by the office of Principal Chief Commissioner of Customs, Mumbai, whereby the officers have been advised not to invoke the violation of the provisions of CBLR, 2018 and make the Customs brokers co-noticees in cases involving interpretative disputes regarding classification, availment of the benefit of exemption notification and valuation. He would rely upon the following decisions:- Mehul & Co. [2022 (5) TMI 30 - Bombay High Court] S.K. Logistics [2016 (331) ELT 486 (Tri.-Del)] Jaiswal Import Cargo Services Ltd. [2019 (370) ELT 1366 (Tri.-Del.)] United Safeway India Pvt. Ltd. [2019 (369) ELT 1563 (Tri.-Bang.)] Moriks Shipping & Trading (P) Ltd. [2015 (317) ELT 3 (Mad.)] Akanksha Enterprises [2006 (203) ELT 125 (Tri.-Del.)] GM Ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents imported vide Bill of Entry No. 7428890 dated 11.04.2020 and IGM No. 2251839 dated 17.04.2020 stuffed in Container No. KMTU 7463047 as Shri Sumit Sharma used to placed the order for the consignment from the foreign supplier and also tie up with the Customs Brokers M/s Geeta Vijay Logistics for customs clearance of the goods, imported in the name of M/s. Bansi -Enterprises. It is already on record that there was no interaction between the Customs Broker and the IEC holder of the importing firm M/s Bansi Enterprises so that the Customs Broker could give proper advice. It is crystal clear evident that the CB was hand in glove with the proxy importer viz. Shri Sumit Sharma and facilitated the improper importation of the goods. Having perused the findings of the Inquiry Officer, I am of the considered opinion that the findings of the inquiry officer are based on the available evidence, facts and circumstances of the case. I agree with the findings of the Inquiry Officer with respect to violation of Regulation 10(d) of the CBLR, 2018. Thus, the CB have violated the provisions of Regulation 10(d) of CBLR, 2018, which proves the contravention of provisions of Regulation 10(d) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actively involved in improper importation of the goods in contravention to the provisions of Customs Act, 1962, read with Section 9 and 17 of the Insecticides Act, 1968. These commissions and omissions on the part of the CB firm prove grave inefficiency in discharge of their duties as a Customs Broker. Hence, I hold that the CB failed to fulfill the obligation of Regulation 10(m) of CBLR, 2018, as they have failed to discharge their duties as a Customs Broker with utmost speed and efficiency." 4.3 The findings recorded by the Joint Commissioner against the importer and the Customs broker are as follows:- "37. In so far the penal liability of the Customs Broker, M/s. Geeta Vijay Logistics (AWIPS1442CCH001) is concerned, the charge is that they abetted the commission of the above offence by way of not declaring the correct description, quantity and value of the impugned goods; that, they had not followed the obligation stipulated under Regulation 10 of the Customs Broker Licensing Regulations, 2018 and thus they have rendered themselves liable for penal action Section 112(a) of the Customs Act, 1962. In their reply to the Notice they have stated with the help of case laws tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments in respect of the aforesaid Bill of Entry along with the KYC documents of the importer were handed over by Shri Sumit Sharma to them with the Authorisation as seen from their Statement although there is no confirmation from the Importer or from his Manager during the investigation. Instead, both sides have before me confirmed the existence of this Authority letter and which was mentioned in the said Statement of the CB. 39. From the Authority Letter dated 11.04.2020, 1 find that the job of clearance came to be accepted by the CB only after the Vessel Entry Inwards. I find that the charge of not declaring the correct description, quantity and value of the impugned goods besides not having followed the obligation under the Regulation are the 2 charges. Insofar as the 1st charge is concerned, I find that the Authority Letter dated 11.04.2020 absolves them of the charges that the CB knew that the goods were liable for confiscation. Under such a situation, the Authorisation dated given by the Importer to the Customs broker holds the key to the innocence of the Customs broker Looking at the wordings used in this Authority Letter dated 11.04.2020, 1 extend the benefit of doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled inquiry. 4. There are numerous judicial pronouncements wherein it has been. inter-alia, held that in cases where there is no evidence of complicity in the illegal importation of goods or wrong intent or prior knowledge about the violation, the penalty cannot be imposed on the Customs Broker." 4.6 The decision in the case of Dhakane & Co. [2015 (317) ELT 56 (Tri.-Mumbai)] relied upon by the Revenue is not applicable to the facts of the present case as in the said decision the authority letter issued by exporter in favour of CHA was fabricated. 4.7 The decision in the case of H.B. Cargo Services [2011 (268) ELT 448 (AP)] also does not support the case of Revenue. 4.8 In the case of Jaiswal Import Cargo Services Ltd. [2019 (370) ELT 1366 (Tri.-Del.)], Tribunal has observed as follows:- "13. No doubt, CHA is a link between the Customs Authorities and the importers and the CBLR Regulations imposes obligation upon them which have to be taken as mandatory but law is also settled that not any and every infraction of the CHA Regulations either Regulation 13 or elsewhere leads to the revocation of license rather in line with a proportionality analysis and only grave and serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of said Prohibition Order issued the SCN to the appellant alleging violation of various Regulations as prescribed in CBLR, 2018 and appointed the Inquiry Officer. We also find that the said Inquiry Officer after conducting of detailed inquiry and examining the documents produced by the appellant as well as the exporter has exonerated the appellant by holding that they have not violated any of the Regulations 11(a), (d), (e), (f) & (n) of CBLR, 2013. The only fault found by the Inquiry Officer against the appellant was lack of supervision towards the work carried out by the person employed by him who was a trainee officer. Further, we find that there is no finding of the Inquiry Officer against the involvement of the appellant in the offence committed by the exporter regarding the overvaluation of the export goods. In view of the finding of the Inquiry Officer, it was not required to pass the impugned order by the Commissioner of Customs. Further, the Commissioner has also violated the principles of natural justice without putting the appellant to notice the reasons for his disagreement with the findings of the Inquiry Officer which according to us is the basic requirement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of the CHA was recorded and there is no statement of the exporter that CHA was having any knowledge about misdeclaration of the goods. In that situation, the penalty on the CHA is not leviable. The decision of V. Esakia Pillai (supra) is squarely applicable to this case, wherein this Tribunal has held that no evidence is available on record in form of confessional statement or any statement of the exporter or anybody to show that CHA had knowledge and information about the misdeclaration of the goods. Accordingly, the penalty imposed on CHA is waived." 4.12 In the case of Prime Forwarders [2008 (222) ELT 137 (Tri.- Ahmd.)], Tribunal has observed as follows:- "10. As regards, penalty on M/s. Prime Forwarders, customs house agent, no evidence of their involvement or their knowledge about mis-declaration has been brought on record. The Commissioner has observed that being a responsible CHA, he should have informed the correct description of the goods. However, we find that the said CHA has acted on the basis of the documents given to them and there is nothing to show that he was aware of the containers being stuffed with Ferro Titanium instead of brass scrap. As such we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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