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TMI Blog2023 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... el and Export at the port ICD Loni wherein goods were declared as Pan Masala and other house hold products such as comb, sofa, broom brush etc. The goods were examined and Let Export Order was passed by the proper officer and goods were thereafter dispatched from ICD Loni to Gateway port of Pipavav for further export. However, on information, DRI stopped and further examined the goods at Pipavav, wherein as against the declared pan masala, DRI allegedly found 42,00,000 number of Gutkha pouches - a prohibited item. During the course of investigation, appellant in his statement dated 06.08.2017 stated that on the instructions of Shri Mehmood (a middleman) and Shri Shubham Garg (the exporter), appellant prepared invoice and other documents and filed the said Shipping Bill, that he had agreed to clear the goods on payment of Rs.5,000/- as clearing charges while other logistic charges were separate and that appellant was not informed by said Shri Mehmood and Shri Shubham Gard, that the goods being exported contained Gutkha and thus the appellant was not in the knowledge of real content of the consignment. It is claimed that since the said statement dated 06.08.2018 was not as per wishes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggling offence, and had implicated the appellant to avoid punishment. It is pertinent to mention that the appellant had requested for cross examination on 17.12.2018 wherein the due date for completion of inquiry was 07.01.2019. This indicates that the Inquiry Officer had sufficient time to permit cross examination of the said persons. The Inquiry Officer instead finalised the inquiry report on 01.01.2019 in haste. He submitted that in this manner, the Inquiry Officer had contravened the provisions of Regulation 17(4) of CBLR 2018. 6. He further submitted that Shri Shubham Garg, the exporter, in his statement dated 18.08.2017 has accepted the fact that he along with Shri Mehmood alias Guddu (a middleman) met the appellant in 1st week of July 2017 at Karol Bagh, to seek details of documents required for export. He once again met the appellant around 16/17th July, 2017 to furnish documents asked for by appellant for export. The appellant was fully aware as to who was the real exporter and that there is a middleman also. It was Shri Shubham Garg, the exporter who had signed the Shipping Bill. He relied on the CESTAT judgment in K.S. Sawant & Co. Vs. Commissioner of Customs (Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had duly verified the same on the sites of Income Tax Department and Directorate General of Foreign Trade. It is a matter of record that the exporter had used the said address for the purpose of correspondence and obtaining of IEC. Besides, the exporter Shri Shubham Garg in the present case was duly found to be existent and appeared before the Customs authorities and it is not a case of the Department that his credentials were found to be wrong. He relied on Tribunal‟s decision in the matter of Setwin Shipping Agency Vs. CC (General), Mumbai - 2010 (250) ELT 141 (Tri.-Mumbai)which held that there is no requirement for the CHA (Customs Broker) to verify physically the premises of importer/exporter. In the matter of Him Logistics Pvt. Ltd. Vs. Commissioner of Customs, New Delhi - 2016 (338) ELT 725 (Tri.-Del.),the Tribunal held that there is no stipulation or legal requirement for physically verifying business or residential premises of importer. The CB cannot be held responsible for fraudulent IEC by importer. Once the CB has carried out verification as per KYC norms, the extreme punishment of revocation of licence was not sustainable. The said order of the CESTAT has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f) as he had knowingly withheld the information that the IEC had been sublet and counterfeit prohibited goods were attempted to be exported. The appellant did not undertake any KYC verification of the exporter by using reliable independent authentic documents, data or information and thus was involved in submitting fabricated documents before the customs authorities. The appellant had connived with fraudsters and had failed his duties as a customs broker required under CBLR, 2018. There was no infirmity in the order of the Commissioner in revoking the customs broker license. The authorised representative relied on the following decisions in support of his arguments: (i) Bhaskar Logistic Services Vs UOI [2016 (340) ELT-17 (Pat)] (ii) Commissioner of Customs Vs K.M. Ganatra [2016 (332) ELT- 15 (SC) (iii) Jasjeet Singh Marwaha Vs UOI [2009 (239) ELT-407(Del) (iv) M/s Falcon India Vs Commissioner of Customs, Delhi [2022 (3) TMI-CESTAT-NEW DELHI] 9. We have heard the learned counsel for the appellant and the learned authorised representative for the Department. The issue before us for decision is whether there were sufficient grounds for the adjudicating authority to revoke the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panchwitnesses for examination and cross-examination by the petitioner." In view of the above, we hold that the retraction by the appellant cannot negate the evidentiary value of his confessional statements. Further, the denial of request for cross examination, in the face of the said statement of the appellant, cannot be a violation in view of the above. It is also interesting to note that other than the appellant, none of the others investigated in this offence have retracted their statements 11. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Jasjeet Singh Marwaha (supra) has held that the CHA can be held responsible for the violation of the Customs Act, and not only the violation of CHALR (now referred to as CBLR). The relevant para of the judgment is reproduced hereinbelow: "6.3 The provisions referred to hereinabove make it clear that an owner or importer can act through an agent. In the instant case, the appellant who is admittedly the CHA of the importers, both filed as well as filled up the contents of the bill of entry, a fact which is not denied, on behalf of the three importers referred to hereinabove. In view of these facts and the provisions referred to hereinabove, it cannot be said that the agent cannot be held to be liable for violation of the provisions of the Act. The purpose of providing for appointment of an accredited agent, that is, an agent who has been issued a licence under the Regulations framed under the Act, is not only to facilitate the clearance of goods, but in doing so, to hold either one of them or both accountable for the actions which they take, based on which the clearance of goods imported into the country is brought about. The contention that the licence of a CHA can be susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing list was prepared by the appellant in his office. This is corroborated by Sh Shubham Garg, the IEC holder. The export consignment was packed and stuffed in the presence of the representative of the appellant. This has been corroborated by others in their respective statements. The appellant was aware that the IEC of Shubham Garg of M/s Navrang Jewel and Export was being used by Salim Dola for export of Gutka, which is a prohibited item. It has to be concluded that the appellant was very much aware of the nature of the consignment and aware of the fact that the IEC did not belong to the actual exporter of the consignment. He had indulged in this offence for monetary gains. The Apex Court in Commissioner of Customs Vs Aafloat Textiles (P) Ltd., [2000 (235) ELT 587] held on principle that fraud and collusion vitiated even the most solemn proceedings in any civilised system of jurisprudence. We note that similar views have been expressed by the Supreme Court in Munjal Showa Ltd Vs Commissioner of Customs and Central Excise wherein it held, "16. In that view of the matter and on principle that fraud vitiates everything in such forged or fake DEPB licenses/Scrips are void ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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