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TMI Blog2023 (10) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. Being aggrieved against the impugned order, the appellant had filed this appeal before the Tribunal. 3.1 The brief facts of the case are that under the Customs Broker (CB) license No. 11/17 that was issued by jurisdictional Principal Commissioner of Customs (General), Mumbai, the appellants CB were granted extension to operate their business as CB at Kolkata Customs Commissionerate under Regulation 7(3) ibid. An offence report in the form of Order-in-Original dated 31.03.2022 passed by Additional Commissioner of Customs, Kolkata Customs and Prohibition CB order No.11/2022 dated 15.07.2022 prohibiting the operation of appellants as CB at Kolkata Customs jurisdiction were received by the office of Principal Commissioner of Customs (General), Mumbai for initiating necessary action against the appellants under CBLR, 2018. In the said Order-in-Original dated 31.03.2022, the adjudicating authority had imposed penalty of Rs.5,00,000/- on the appellants under Section 112(a)(i) of the Customs Act, 1962 for their role as CB in clearance of certain imported consignment of 'Betel nuts' despite knowing that the same has been issued with a Non-conforming Certificate (Rejection C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.03.2020; the Customs officers have mentioned while clearing the imported goods that 'they checked NOC from FSSAI and PQ in system also checked COO - CFT'. Further, the appellants came to know about the rejection report of FSSAI much later after ten months of clearing the imported goods, only on 14.01.2021. Thus, they were not even aware of any irregularity in clearance of impugned goods. 3.4. Learned Advocate denied allegations of violations of regulations 10(d), (e), (f), (m) and (q) of CBLR citing that after checking NOC for imported goods, Customs had cleared the goods; non-conformity certificate was generated on 01.01.2021 and there is no evidence or documents to support any of these allegations and hence prayed for setting aside the impugned order. In this regard, he relied upon the following case laws: - (a) Leo Cargo Services Vs. Commissioner of Customs, Airport & General New Delhi - 2022 (382) E.L.T.30 (Del.) (b) Bruce Logistics Pvt. Ltd. Vs. Commissioner of Customs (General), Mumbai - Final Order No. A/87290-87291/2019 passed by CESTAT, Mumbai 4. Learned Authorised Representative (AR) appearing for the Revenue reiterated the findings recorded in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants, so that necessary action for suspension or revocation of CB license, could be initiated by him. As a result of this, upon conduct of regular inquiry proceedings under Regulation 17 ibid, the impugned order dated 04.05.2023 was issued in this case. 7. In order to examine the above issues, along with the factual details submitted, and divergent stand taken by both the parties, we would like to firstly examine the facts contained in the SIIB investigation proceedings of Kolkata Customs Commissionerate and the allegations specifically framed against the appellants for having violated the CBLR ibid by Mumbai Customs Commissionerate. 8. The factual records indicate that the appellants had filed the Bill of Entry No.5052617 dated 25.09.2019 for home consumption at Kolkata Customs, in respect of import of 'Dried peeled whole Betel Nut' by the importer-trader M/s Aakam Exim Private Limited, Chennai. For the importer, it was their first import through the appellants at Kolkata port; though the importer is situated in Chennai, owing to the reason that their ultimate buyer M/s S.K. Enterprises, being situated in West Bengal, they had obtained the imported goods through Kolkata port. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use deterioration or contamination of the products. (b) Physical/ visual appearance in terms of possible damage - whether it is swollen or bulged in appearance; and also for rodent/insect contamination or presence of filth, dirt etc. - should be checked. (c) The product should meet the labelling requirements under the Prevention of Food Adulteration Rules and the Packaged Commodities Rules. This includes ensuring that the label is written not only in any foreign language, but also in English. The details of ingredients in descending order, date of manufacture, batch no., best before date etc. are mandatory requirements. All products will also have to indicate details of best before on all food packages. (Reference Ministry of Health notification No. GSR 537(E) dated 13th June 2000)." 2.2 All the consignments of edible/food products imported through ports, airports, ICDs, CFSs, Land Customs Stations shall be referred to PHOs for testing and clearance shall be allowed only after receipt of the test report. Pending receipt of test report, such consignments may be allowed to be stored in warehouses under section 49 of the Customs Act, 1962. If the product fails the test, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant information in the FICS. 31. In case the NOC is necessarily required to be issued manually except in case of consignments covered by paras 6 to 8 above, prior approval of the FSSAI HQ is required. A copy of this approval shall be sent along with the NOC to the Customs authorities." From the plain reading of the above legal provisions and the circular/ guidelines issued for implementation of FSS Act and the implementation guidelines, it is seen that primarily it is the importer M/s Aakam Exim Private Limited, who is responsible for compliance with the legal requirements of food safety license in import of 'Dried peeled whole Betel Nut' and is accountable for any omission and commission which had led to import of food product which is not in conformity with the tested parameters and thus such imports are in violation of the Customs Act, 1962 read with relevant Rules and Regulations. We also find that separate show cause proceedings have been initiated for the role played by the importers in the above clearance of imported goods as well as the appellants in facilitating such clearance of imported goods. However, in the findings of the said proceedings the Original authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice dated 28.12.2022 is not sustainable. 13. We further find that in respect of delay in suspension proceedings of customs broker license, the Hon'ble High Court of Bombay in the case of Principal Commissioner of Customs (General), Mumbai Vs. Unison Clearing P. Ltd., reported in 2012 (361) E.L.T. 321 (BOM - HC) have elaborately discussed the issue and came to a conclusion that the only way to effectively implement the provisions in the interest of both the parties is that the reasons for delay can then be tested to derive a conclusion whether the deviation from the time line prescribed in the Regulation, is "reasonable" or 'not'. The relevant paragraph of the judgement is extracted below: "15. In view of the aforesaid discussion, the time-limit contained in Regulation 20 cannot be construed to be mandatory and is held to be directory. As it is already observed above that though the time line framed in the Regulation need to be rigidly applied, fairness would demand that when such time limit is crossed, the period subsequently consumed for completing the inquiry should be justified by giving reasons and the causes on account of which the time-limit was not adhered to. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olated by the appellants, we would also like to examine these on the basis of factual matrix of the case. The relevant part of the CBLR, 2018 dealing with the obligations of the Customs Broker is extracted below: "Regulation 10. Obligations of Customs Broker: - A Customs Broker shall - xxx xxx xxx xxx (d) advise his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (e) 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; (f) not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Customs authorities, as the case may be, from a client who is entitled to such information; (m) discharge his duties as a Customs Broker with utmost speed and efficiency and without any delay; (q) co-operate with the Customs authorities and shall join investigations promptly in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted goods on 20.03.2020. Thus, the allegation of violation of delay is contrary to the factual position. The appellants have duly participated in the SIIB investigation and had given voluntary statement before the Customs SIIB investigation authorities as early as 17.02.2021. On the contrary, the request of the appellants for cross-examination of Customs Appraiser Smt. Marcelina Kisku & Shri Prodyut Ghosh, Customs Examining officer (EO) who were in-charge at the Balmer Lawrie CFS, Kokata in giving clearance of imported goods on 20.03.2020 and FSSAI Officers who had issued the rejection report/ Non Conformity Certificate has not been acceded to. Thus, the show cause proceedings have not duly observed the principles of natural justice in giving reasonable opportunity to the appellants to properly place their case before the appropriate authorities. Thus, we find that there is no evidence to indicate any violation of Regulations 10(f), 10(m) or 10(q) ibid, by the appellants. 19. It is factually incorrect to state that the appellants had colluded with the importer in clearance of imported goods contrary to the FSSAI rejection certificate. Thus, we find that the conclusions arrived a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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