TMI Blog2024 (2) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... gh was exporting the goods through dummy firms. It is thus evident that the appellant had not verified the correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN), identity of his client and functioning of his client at the declared address as required under the CBLR, 2018. The arguments of the learned counsel that the appellant was unaware of the nature of the goods, nor was he aware of the misdeclaration or undervaluation of the export goods, cannot be accepted. The serious contraventions of the CBLR, 2018 stand established. Existence of mens rea - HELD THAT:- In the instant case, it has been noted above that the appellant had actively connived with the main player Shri Kultar Singh. It is also on record that it was the appellant who had suggested the description of the goods in the export documents. It is also on record that the appellant charged extra for clearance of the cargo, which was paid in cash without any bill. It is also on record that samples of the goods sought to be exported were shown to the appellant. However, the appellant neither advised his client correctly nor did he inform the appropriate authorities. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , New Delhi. (ii) M/s Adarsh Enterprises, B-99, Patel Garden, Uttam Nagar, New Delhi. (iii) M/s Shree Balaji Trading, Plot No. 13, B-I, Nanhey Park, Uttam Nagar, Matiyala, New Delhi. (iv) M/s Shree Durga Fashion, 92-B, Nawada Village, Uttam Nagar, New Delhi. (v) M/a Apex Trading, A-421A, Mansa Ram Park, Uttam Nagar, New Delhi; (vi) M/s Kanak Fashion, Plot No. 13, Block B, Nanhey Park, Uttam Nagar, New Delhi. The aforesaid exporters had consigned their goods to (i) M/s K.K.S. General Trading L.L.C., PO Box-49320, Dubai, UAE and (ii) M/s Gremix General Trading LLC, PO Box 234350, Dubai UAE. The export goods declared as Floor Covering (Braided) of Man- Made Fiber and classified under CTH No. 57049090 were filed for clearance under claim of Duty Drawback @ 9.1% ad-valorem and also for benefit under Chapter 3 of Focus Product Scheme (FPS). The FPS benefit being claimed under Chapter 3 of FTP 2009-14 was for product code 11, which was @ 5% ad-valorem,as admissible to specified goods of Chapter 57. In terms of Appendix 37D Focus Product Scheme, the benefit for the sole entry pertaining to goods of chapter 57 was admissible to all handmade carpet and other Textile Floor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other documents used to complete further formalities like examination and obtaining let export order. He himself had never seen the consignment of floor covering prior to shipment and they had filed the documents given by the exporter on the basis of which they proceeded with the Customs formalities. Shri Khanna submitted that they could not ascertain the value declared by the exporter or importer that the CTH of the goods being exported vide S/B No. 5190603, 5190606, 5190607, 5201651, 5201652, 5201661 and 5201662 all dated 25.09.2014. On completion of the investigations, show cause notice was issued to the exporters. Meanwhile, the offence report dated 22.10.2019 was issued based on which the impugned order was passed after following the procedure as laid down in CHALR, 2004. 6. The learned counsel for the appellant submitted that the impugned order dated 29.12.2020 passed by the Commissioner of Customs (Airport General), NCH, New Delhi is not legal and proper and not sustainable on facts and circumstances of the case as the said order had been passed on ex-parte basis without seeking clarification from the appellant and without appreciating any evidence with regard to compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. The learned counsel submitted that the Noticee and his employee were not aware about such misdeclaration of goods and value as the said mis-declaration came to the notice to the department only after due examination and investigation by the DRI. 8. The learned counsel also reiterated that as per the statement of Shri Moti Khanna, the shipping bills were filed after complying with the KYC norms and all the related documents were seized by DRI made at office/business premises of the appellant. He stated that the department gathered all the evidences which was on record, whereas the Adjudicating Authority has passed the ex-parte order based on assumptions and presumptions. The learned counsel relied on the order in original No. 55/SM/Suspension/Policy/2016 dated 05.08.2016 and OIO No. 56/SM/Suspension/Policy/2016 dated 05.08.2016 passed by Shri Sanjay Mangal, Commissioner of Customs (General), NCH, New Delhi wherein on similar investigation made by ADG DRI and based on offence report F.No. DRI/HQ/CI/50D/Enq-39(NT- 13/2014 dated 16.02.2015 against other exporter who had attempted to export floor covering by overvaluing the same in order to avail undue drawback etc. He contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 284 (Tri.- Delhi) it was held that it is well settled law that punishment should be commensurate with offence in the facts and circumstances of the case and in view of inquiry officer s report it was not found fit case for revoking the license and depriving of the appellant of their means of livelihood. viii. Overland Agency Vs. Commissioner of Customs (Preventive), Kolkata 2004 (166) ELT 258 (Tri.- Kolkata) In this case it was held that suspension of license deprives the licensee as also a number of worker of their livelihood. In absence of serious irregularity committed by the CHA, license should not be suspended. 10. The learned Authorized Representative submitted on the issue of time bar that the Taxation and other Laws (Relaxation of Certain Provisions) Ordinance 2020 (No. 2 of 2020) dated 31st March 2020, the time limits as specified in or prescribed or notified under the Customs Act, 1962 and falling during the period from the 20th day of March, 2020 to the 29th June, 2020 for completion of any proceeding or issuance of any order, notice, intimation, notification or sanction or approval, by whatever name called, by any authority, commission, tribunal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habra Vs. Union of India 1997 (89) ELT 646 (SC) has held that the customs officers are not police officers, therefore, the confession, is an admission and binds the appellant. Therefore, the aforementioned statements are authentic and reliable having evidentiary value in view of the above established law. 12. The learned Authorized Representative stated that it is well established that Shri Kultar Singh did not have the authorization from any of the said six firms. The appellant was well aware of the fact that the IECs in question were dummy firms and were being illegally used by Shri Kultar Singh for export of undervalued and mis-classified goods in order to avail undue and inadmissible benefits of Duty Drawback and Focus Product Scheme. Despite being aware of the knowing all those facts, the appellant had accepted the customs clearance work of impugned exports consignments from Shri Kultar Singh without obtaining authorization from actual exporter for monetary consideration. He contended that the appellant was well aware of the modus operandi being adopted by Shri Kultar Singh to avail undue and inadmissible benefits of Duty Drawback and Focus Product Scheme. But the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the appellant. The failure thereof invites the penalty as that of revocation of licence. In the instant case, the appellant had not exercised due diligence and had deliberately facilitated illegal exports from his firm. Consequently, the appellant had violated the various provisions of Regulation 10 of CBLR, 2018. Therefore, he prayed for dismissal of the appeal. 14. We have heard the learned counsel and the learned Authorised Representative. In order to appreciate the arguments, it would be imperative to revisit the facts of the case in brief. Based on an intelligence received from DRI, the export consignments of goods described as Floor Covering (Braided) of Man Made Fibre pertaining to 6 traders/exporters were examined in in several ports viz., ICD, Loni, ICD Tkd, ICD Ppg, and CFS Mundra, and were seized. Subsequent investigations revealed that the alleged trader/exporters were mostly non-existent or fictitious, and ineligible drawback had been claimed by these exporters. It was also noted that the appellant was the Customs Broker who had filed the export documents, and had actively facilitated the fraudulent exports. Hence vide the impugned order the CB lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsh Enterprises, M/s Shree Balaji Trading, M/s Shree Durga Fashion, M/s Apex Trading and M/s Kanak Fashion. It is also established that the appellant was well aware that Shri Kultar Singh was exporting the goods through dummy firms. It is thus evident that the appellant had not verified the correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN), identity of his client and functioning of his client at the declared address as required under the CBLR, 2018.We also note that Shri Vaibhav Goel(controller of two export firms)in his statement dated 03.06.2015 has admitted that the description of the goods as mentioned in the export documents as Floor Covering (Braided) of Manmade Fibre was suggested by the appellant. Shri Vaibhav Goel had gone on to depose that in addition to the clearing charges of Rs. 10,000/- per container, the clearing agent had charged him Rs. 60,000/- per container in cash for which no bill was issued by them. This established that the appellant had connived for primary consideration. Shri Amit Arora, in his statement dated 21.01.2015 (who had exported the similar goods)also deposed that he had shown a sample of floo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in the case of Bhaskar Logistic Services Pvt Ltd., Vs Union of India [2016(340)ELT 17(Del)] held as follows:- 33 . As regards the role and responsibility of a CHA/Customs Broker in such clearance, Regulation 11(n) of CBLR clearly provides that Customs Broker shall verify the antecedent, correctness of IEC, identity of his client and functioning of his client at the given address by using reliable independent authentic documents/data/information. Identical provision was there under CHALR under Regulation 13(o) of the CHALR. Thus, if a Customs Broker facilitates the filing/processing of a Bill of Entry by a person other than a valid IEC holder using IEC of a different person, it will amount to violation of the provisions of Regulation 11(n) of CBLR/Regulation 13(o) of CHALR. 34 . In the case of Arvind C. Bhagat v. Commissioner of Customs, reported in 2000 (122) E.L.T. 678 (Mad.). The Division Bench of Madras High Court upheld the Department s action on the CHA, who had stood for surety of his client importer, who was found to be a fictitious firm. When a Customs Broker is aware that the IEC holder and the person importing/exporting is different and despite that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary to ensure proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment. 21. We also take note of the decision of the Tribunal in the case of Noble Agency Vs Commissioner of Customs, Mumbai [2002 (142)LT 84(Tri-Mum)] highlighting the role of the CHA/CB, which has subsequently been upheld by the Supreme Court. The relevant paragraph of the Tribunal order is reproduced:- 12. The CHA occupies a very important position in the Customs House. The Customs procedures are complicated. The importers have to deal with a multiplicity of agencies viz. carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through these agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the Customs. A lot of trust is kept in CHA by the importers/exporters as well as by the Government Agencies. To ensure appropriate discharge of such trust, the relevant regulations are framed. Regulation 14 of the CHA Licensing Regulations lists out obligations of the CHA. Any con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
