TMI Blog2024 (4) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... as the purported mis-declaration of imported goods was not known to the appellants, the non-compliance by the importer in respect of imported goods could not have been brought to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) by the appellants CB - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable. Violation of Regulation 10(e) - HELD THAT:- The documents submitted by the importer to the appellants CB included invoice, packing list, Bill of lading and country of origin certificate. The copy of these documents were perused and we find that the Commercial invoice and Bill of lading No. SHASEA03943 specifically mentions the name and address of the supplier/consignor as Hangzhou Westlake Automotive Spare Parts Group, INC., Hangzhou, China. Besides the country of origin certificate issued by China Trade Council specify that imported goods are of HS code 8708.93 of Harmonized System of international classification and that the goods are of origin of the People s Republic of China. However, while declaring the imported goods in the B/E, the tariff classification mentioned in these documents were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived the documents indicating the correct HS code for the imported goods, it is found that it is justifiable to partially forfeit the security deposit to the extent of Rs.5,000/-, which would be reasonable, commensurate with the violation and would be in line with the judgement of the Hon ble Supreme Court in the case of COMMISSIONER OF CUSTOMS VERSUS M/S K.M. GANATRA CO. [ 2016 (2) TMI 478 - SUPREME COURT] , in bringing out the importance of crucial role played by a Customs Broker. Appeal allowed in favour of appellant. - HON BLE MR. S. K. MOHANTY , MEMBER ( JUDICIAL ) And HON BLE MR. M. M. PARTHIBAN , MEMBER ( TECHNICAL ) Shri Prashant Patankar , Advocate for the Appellants Shri Deepak Sharma , Authorized Representative for the Respondent ORDER PER : M. M. PARTHIBAN This appeal has been filed by M/s Kismat Clearing Agency (herein after, referred to as the appellants ), holders of Customs Broker License No. 11/847 assailing Order-in-Original CAO No. 84/2013/CAC/CC(G)/PKA-CHA (Admn) dated 12.07.2013 (herein after, referred to as the impugned order ) passed by the learned Commissioner of Customs (General), New Custom House, Ballard Estate, Mumbai-I. 2.1. Briefly stated, the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... un Nishit, employees of the appellants CB. On this basis the Customs authorities have come to the conclusion that there was mis-declaration in import of goods in order to evade payment of customs duty and the appellants CB has violated the provisions of CHALR, 2004/CBLR, 2018. 2.3 On the above basis the jurisdictional Commissioner of Customs (General), Mumbai-I had concluded that there is a prima facie case against the appellants for having contravened Regulations 13(d), 13(e) and 13(n) of CHALR, 2004 corresponding to 10(d), 10(e) and 10(m) of CBLR, 2018. Accordingly, the department had initiated show cause proceedings by issue of notice dated 12.06.2013 for initiating action under Regulation 20(1) read with 22(7) of CHALR, 2004 corresponding to Regulation 16(1) read with 17(7) of CBLR, 2018, against violations of CBLR as above. 2.4 As the appellants CB felt that there was no mala fide on their part having been established in the investigation, they did not desire to have a formal inquiry proceeding. Accordingly, they had requested the Commissioner of Customs being the licensing authority to take up the case of adjudication without initiating inquiry proceedings. Accordingly, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 13 of CHALR, 2004, has been examined in detail by the Commissioner and only security deposit has been forfeited partially for the violations of CHALR/CBLR. Thus, learned AR justified the action of Commissioner of Customs (General) in forfeiture of security deposit in the impugned order and stated that the same is sustainable in law. 5. Heard both sides and perused the case records. We have also considered the additional written submissions given in the form of paper book by both the sides. 6.1. The issue involved herein is to decide whether the appellant Customs Broker has fulfilled all his obligations as required under CHALR, 2004/CBLR, 2018 or not. The specific sub-regulations which were violated by the appellants are Regulations 13(d), 13(e) and 13(n) of CHALR, 2004, which are corresponding to Regulations 10 (d), 10(e) and 10(m) CBLR, 2018, and hence there are three distinct charges framed against the appellants. As the present Regulations in vogue are CBLR, 2018, which have been issued in supersession of earlier Regulations/CHALR or CBLR, the corresponding Regulations of CBLR, 2018 are quoted for ease of reference here afterwards. 6.2. We find that the Regulation 13 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details in the B/E for aforesaid imports as given in the invoices and other related documents given by the importer. Further, the appellants were not aware of the purported under-valuation of imported goods, and that there was no evidence at the time of customs clearance that the goods would be marked with higher MRP later. The action taken under CBLR, 2018 against the appellants CB is a follow up action taken consequent to the customs offence case made out by NSPU on the basis of specific information for which separate SCN was issued on 07.05.2013, and thus the present proceedings are only for the violations under specific sub-regulations under CBLR, 2018. It is not the case of the Revenue that the mis-classification and under valuation of the imported goods was planned and executed by the appellants CB. In the absence of any document to prove such a claim from the appellant CB s end, it is difficult to fasten such liability of mis-declaration and under-valuation of imported goods on the appellants CB. 7.2. From the above, we find that appellants have duly filed the bills of entry as per the documents given by the importers and they were not aware of the purported mis-declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d come to the conclusion that the appellants CB had violated the provision of Regulation 10(m) ibid, as the appellants have not paid proper attention to the correct price range of the item and to the compliance of instructions of RSP based items and thus rendering the appellants guilty of such lapses for treating it as inefficiency on their part in discharge of their duties cast upon under Regulation 10(m) ibid (corresponding to Regulation 13(n) of CHALR, 2004). It is not the case of Revenue that in respect of the B/E No. 983392 dated 13.07.2009, the appellants CB had delayed payment of duty, not declared the RSP details in the B/E or delayed in processing of the B/E in an inefficient manner. 9.2. From the facts of the case it is indicated that before the imported goods were taken up for investigation, the customs duty on declared value was duly paid on 13.07.2009 i.e., the same day of filing B/E. Even during investigation proceedings, right from detailed examination of the goods under panchnama proceedings, the appellants CB's representative was present and cooperated with investigation authorities. Further, voluntary statements were also given during the investigation by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.C.). The relevant paragraph of the said judgement is extracted below : 15. In this regard, Ms. Mohana, learned senior counsel for the appellant, has placed reliance on the decision in Noble Agency v. Principal Commissioner of Customs, Mumbai 2002 (142) E.L.T. 84 (Tri. - Mumbai) wherein a Division Bench of the CEGAT, West Zonal Bench, Mumbai has observed:- 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 contravention of such obligations even without intent would be sufficient to invite upon the CHA the punishment listed in the Regulations .. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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