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TMI Blog2024 (1) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the importer, M/s Supreme Enterprises. 3. The bill of entry was facilitated under RMS and the examination order was generated which reads as, "Assessment and Examination has not been prescribed for this B/E "which meant that the said B/E was marked for RMS facilitation for which assessment and examination was not to be conducted and the out of charge has to be given by the in-charge shed appraiser. The container was cleared on 13.08.2018. 4. While reviewing the clearance of the goods under RMS, it came to the notice of the department that, the system entry showed as, "Assessment and Examination has not been prescribed for this B/E" whereas it appeared that the CB produced the B/E for clearance at import shed with another examination instruction through forged entries where the first print page of the docket read as, "Examination has not been prescribed for this B/E" and he also added the name of two officers from appraising Group-4, which gave the impression that the B/E has been assessed by the group and no further examination is required. 5. The statement of Shri Prashant Jain was recorded on 20.08.2018, under section 108 of the Customs Act, 1962, where he categoricall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diately coordinated with the department as well as the importer who paid the differential duty along with interest and penalty vide challan dated 23.08.2018. He denied that there has been any casual approach in supervising the employees and hence there is no violation of Regulation 13(12). 9. The learned Authorised Representative reiterated the findings of the Commissioner of Customs in the impugned order and clarified the implications of the fabrication of the document in the present case. He relied on the statement of Shri Prashant Jain where he accepted having forged the document for monetary consideration offered by Shri Aman Jain for faster clearance of the goods which is further corroborated by the statement of Shri Aman Jain. According to him, it is a clear case where the CB had submitted forged/fabricated document before customs authority to avoid assessment of the imported goods vide subject bill of entry with intent to evade customs duty and therefore violated the provisions under Regulation 10(j) of CBLR 2018. In so far as compliance of Regulation 13(12) he submitted that the CB has not only failed to supervise his employee rather he actively connived in the forging of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -valued and in that view the importer had paid the differential duty with interest and penalty suo-moto, we are of the view, that the entire modus-operandi of fabricating and forging the document was at the behest of the Customs broker which was implemented by Prashant Jain being the H-Card Holder of the CB. Needless to say Shri Aman Jain is holding 90% share in the firm and therefore he is very much interested and affected by the efficient performance of the firm. The submission of the learned Counsel that there was no monetary gain or benefit to him by such act, we feel that the same analogy would apply to Prashant Jain also. Therefore, irrespective of whether any benefit had accrued to the appellant or not, he is guilty for such forgery/fabrication of the document thereby violating Regulation 10(j). 12. Regulation 13(12) of CBLR 2018 (erstwhile 17(9) of CBLR 2013) provides: "Customs Broker shall exercise such supervision as may be necessary to ensure proper conduct of his employees in the transaction of business and he shall be responsible for all acts or omissions of his employees." It is an admitted position that the entire work of handling the import clearances was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e & Service Tax Appellate Tribunal and Commissioner of Customs - 2015 (8) TMI 143 - Kerala High Court. (iii) M/s. Ashiana Cargo Services Vs. Commissioner of Customs (I&G) - 2014 (3) TMI 562 - Delhi High Court. (iv) Transfreight Merine Services Private Limited Vs. Commissioner of Customs (Seaport-Import), Chennai - 2016 (2) TMI 438 - CESTAT Chennai. (v) Shri Ganesh Shipping Agency Vs. Commissioner of Customs, Bangalore - 2011 (4) TMI 1172 - CESTAT, Bangalore. (vi) Ark Logistics (P) Ltd. Vs. Commissioner of Central Excise, Hyderabad - 2009 (9) TMI 842 - CESTAT Bangalore. (vii) Falcon Air Cargo & Travel (P) Ltd. Vs. Commissioner of Customs, New Delhi - 2001 (11) TMI 137 - CEGAT, New Delhi. 15(i). In Zulash Clearing (supra), the distinguishing feature was that in proceeding to hold the Customs broker responsible for any acts of commission or omission of employees, the licensing authority did acknowledge that the Broker firm did not have knowledge of the forgery and also that due to lack of any finding in the order that the Customs Broker was aware, let alone, of conniving in the forgery , the revocation of the customs broker license as well as the forfeiture of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be penalised invoking Regulation 19(8) of CHA Licensing Regulations, 2004 in the absence of any finding that the CHA had knowledge of the acts of commissions and ommissions on the part of its employee and hence the same has to be distinguished from the facts of the present case. 15(vi). In Falcon Air Cargo and Travel (P) Ltd. (supra), the first enquiry officer exonerated the appellant and the second enquiry officer observed that it cannot be said with certainty that they connived with them to append false declaration as alleged and therefore applying the principle of proportionality, it was observed that it is not a fit case for revoking the license as the charges are not so grave. 16. One aspect which requires to be considered is that Shri Aman Jain had asked for cross examination of Shri Prashant Jain but despite notice by the Commissioner Customs, he did not appear. Hence it is not a case of rejection of the request to cross-examine and therefore no fault can be found with the impugned order on that ground. 17. On the issue of imposing punishment under the Regulations we are of the opinion that such action of forging and fabricating public document has to be seriously v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the statement of Smt. Seema Singh, the other partner of the CB firm which was recorded on 15.09.2018 where she stated that she did not know Sh. Prashant Jain. Later Smt. Seema Singh retracted her statement to the effect that the said statement was made in the heat of time and under mental pressure and clarified that she knows him as employee. The belated retraction by her has no substance and as held by the Apex Court in Surjeet Singh Chhabra vs Union of India 1997 (89) ELT 646, the confession, though retracted is an admission and binds the petitioner. This conduct of Smt. Seema Singh raises doubt on her credibility and reflects that on being caught she also tried to escape from the responsibility. 20. The submission of the appellant that there is no mens-rea and hence the impugned order imposing the punishment for revocation of the license, forfeiture of security deposit and imposition of penalty needs to be set aside. We are of the view that in compliance of the obligations enunciated in the Regulations mens-rea is not a relevant criteria and the said principle has been approved by the Apex Court in Commissioner of Customs vs K. M. Ganatra & Company - 2016 (332) ELT 15 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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