TMI Blog2024 (4) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... t was found by the department only on the basis of specific investigation conducted by the DRI authorities, and it was a case of concealment of gold in the declared imported goods. It is also a fact that there was no misdeclaration in any of the documents or in the imported goods. Hence, the appellants CB cannot be found fault for the reason that they did not advise their client importer to comply with the provisions of the Act. The act of smuggling is a conspiracy created by the smuggling syndicate in which there was no role of appellants CB. Further, the voluntary statement given by Ms. Priya Hemant Bandarkar, Proprietor of the appellants CB firm on 04.04.2019 clearly show that such smuggling activity in the imported consignment was not known to the appellants CB. Thus, there is no possibility for the appellants CB to bring it to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) about the misdeclaration of imported goods involving smuggling of gold - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable. Violation of Regulation 10(m) - HELD THAT:- There is no case of importer or any other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding a regular CB license issued by the Mumbai Customs under Regulation 7(2) of Customs Brokers Licensing Regulations (CBLR), 2018. On the basis of specific intelligence received by Directorate of Revenue Intelligence (DRI), that gold would be smuggled in a consignment of medical equipment i.e., Air Nebulizer imported in the name of M/s Albela Traders vide Bill of Entry (B/E) No.2552585 dated 25.03.2019, the imported goods were detained and examined by DRI on 26.03.2019. During examination of the goods conducted by DRI in the presence of employer of appellants CB firm, it was found that gold was concealed in the transformers of the Air Nebulizers in the form of silver colour stamping plates. The recovery of 4562.79 grams of smuggled gold was seized by DRI under panchanama proceedings dated 26.03.2019. 2.2. On the above basis and offence report received from the Additional Director, DRI, Mumbai Zonal Unit dated 15.04.2019, the jurisdictional Principal Commissioner of Customs (General), Mumbai-I had concluded that there is a prima facie case against the appellants for having contravened Regulations 10(a), 10(d), 10(m) and 10(n) of CBLR, 2018. Accordingly, he had immediately suspend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sawant Co. Vs. Commissioner of Customs (Gen.), Mumbai - 2012 (284) E.L.T. 363 (Tri.-Mumbai) (ii) Anax Air Services Pvt. Limited Vs. Commissioner of Customs (New Delhi - Final Order No.50002/2022 CESTAT, New Delhi (iii) Kunal Travels (Cargo) Vs. Commissioner of Customs (Import General) - 2017 (354) E.L.T. 447 (Del.) (iv) Him Logistics Pvt. Ltd. Vs. Commissioner of Customs, New Delhi - 2016 (338) E.L.T. 725 (Tri.-Del.) 4. Learned Authorised Representative (AR) reiterated the findings made by the Principal Commissioner of Customs (General) in the impugned order and submitted that all the violations under sub-regulations (a), (d), (m) and (n) of Regulation 10 ibid, has been examined in detail by the Principal Commissioner. The appellants CB got all the documents for import from Shri Ravindra Sonar, who are neither IEC holder nor importer or their representative; they never verified the authenticity of KYC documents properly and had not cross checked or conducted proper verification of existence of importer at their level. Thus, learned AR justified the action of Principal Commissioner of Customs (General) in revocation of the appellants CB s license, imposition of penalty and forfeit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diligence and efficiency on the part of appellants CB, by relying on the statement of Ms. Priya Hemant Bandarkar dated 04.04.2019 that she was aware that in the past, gold was smuggled into India in past import consignments; and they also did not properly verify the KYC documents with due diligence. Thus, the adjudicating authority had passed the impugned order confirming all the allegations of violation of above Regulations of CBLR, 2018. 7.1 We would now take up for examination each of the alleged violations of CBLR, 2018, one by one, as follows. In respect of Regulation 10(a) the adjudicating authority had found that the appellants CB accepted the documents from a third person viz. Shri Ravindra Sonar; they did not meet the importer and check whether the said Shri Ravindra Sonar is an authorised representative of the importer firm M/s Albela Traders and has power to authorize the appellants CB for filing the documents. Hence he concluded that the appellants CB have violated Regulation 10(a) ibid. 7.2. From the facts of the case and the voluntary statements given by various persons during investigation of the case, it is seen that Ms. Priya Hemant Bandarkar, is a F card holder a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said statement dated 04.04.2019 clearly brings out that she has been informed about the DRI s interception of the imported consignment covered in B/E No. No.2552585 dated 25.03.2019 wherein there was smuggling of gold, and she had answered to the questions asked by DRI. It is categorically stated by her at para 5, that she was not aware of any concealment of gold in the imported product i.e., Nebulizers covered by B/E No.2552585 dated 25.03.2019. However, in the same statement in para 4, reference mentioning that she is also aware that in the past, gold was smuggled into India in nine consignments imported in the name of M/s Albela Traders and S.S. Enterprises has no relevance, as her denial of the knowledge has been specifically recorded in the subsequent paragraph. The facts of DRI investigation recorded in the inquiry proceedings very clearly had brought out the role of a syndicate in the involvement of smuggling, in which there was only involvement of S/Shri Ahmed Mohamed Bedra@ Ajay, Mahendra Kate and Ravindra Sonar. Thus, neither the proprietor of the appellants CB nor any of its employees were involved in the said activity of smuggling. Hence, the facts of the case indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on a presumption. Obtaining an authorisation from the importer does not mean that the same should be obtained directly; so long as the concerned import documents were signed by the importer, it amounts to authorisation by the importer and, therefore, it cannot be said that there has been a violation of Regulation 13(a). The question now is whether revocation of licence is warranted for such a violation. In our view, the punishment should be commensurate with the gravity of the offence. Revocation is an extreme step and a harsh punishment, which is not warranted for violation of Regulation 13(b). Accordingly, we are of the view that forfeiture of security tendered by the appellant CHA is sufficient punishment and revocation is not warranted. Accordingly, we set aside the order of the revocation and direct the Principal Commissioner of Customs (General) to restore the CHA licence subject to the forfeiture of entire security amount tendered by the CHA. 8.2 In the absence of any document to prove the claim of that the appellants had acted in an unauthorized manner in mis-declaration of the goods or in smuggling of the contraband, it is difficult for fastening such liability on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on having complained about the inefficiency or delay in clearance of the imported goods by the appellants CB. In the DRI investigation report recorded in inquiry proceedings also it was brought out that the smuggling of gold has been orchestrated by a syndicate in which none of the appellants CB s employees or proprietor is involved. Therefore, the conclusion arrived at by the learned Commissioner of Customs that the appellants have failed to discharge their obligations cast on him under Regulation 10(m) ibid is factually not supported by any evidence and thus it is not legally sustainable. 11.1 Learned Principal Commissioner of Customs (General) had come to the conclusion that the CB had violated the provision of Regulation 10(n) ibid, on the ground that the appellants had never met the importer/IEC holder, and they were not careful and diligent in undertaking the KYC verification process about the background of importer. 11.2 We find from the records, that the appellants CB had obtained the KYC documents from the importer s representative along with their authorization letter; the appellants CB had also submitted that they verified the existence of the importer through the Certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10(n) is that the Customs Broker should verify the identity of the client and functioning of the client at the declared address by using, reliable, independent, authentic documents, data or information. For this purpose, a detailed guideline on the list of documents to be verified and obtained from the client is contained in the Annexure to the Circular dated April 8, 2010. It has also been mentioned in the aforesaid Circular that any of the two listed documents in the Annexure would suffice. The Principal Commissioner noticed in the impugned order that any two documents could be obtained. The appellant had submitted two documents and this fact has also been stated in paragraph 27(a) of the order. It was obligatory on the part of the Principal Commissioner to have mentioned the documents and discussed the same but all that has been stated in the impugned order is that having gone through the submissions of the Customs Broker, it is found that there is no force in the submissions. The finding recorded by the Principal Commissioner that the required documents were not submitted is, therefore, factually incorrect. 35. The Principal Commissioner, therefore, committed an error in holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tecting the interest of Revenue and at the same time he is expected to facilitate expeditious clearance of import/export cargo by complying with all legal requirements. 11.7 In this case, Shri Tausif Mehboob Sayyed, IEC holder and who had signed in the authorization letter dated 24.01.2019, had shown complete ignorance about the existence of import firm M/s Albela Traders and the import activity. However, the entire smuggling of gold activity under the imports made in the name of M/s Albela Traders, in the present consignment under B/E No.2552585 dated 25.03.2019 to the extent of 4562.79 grams of contraband gold of total value of Rs.1,50,57,207/- have been orchestrated by a syndicate of persons namely Shri Ahmed Mohamed Bedra@ Ajay with the help of S/Shri Mahendra Kate, Ravindra Sonar. Further, they had also involved in similar illegal activity in the past similar imported goods involving past nine consignments, for which the B/Es were filed by the appellants CB. Hence, it is not forthcoming how the appellants CB had ignored such deliberate action by the syndicate in handling the import documents for more than nine past occasions, which is indicative of lack of diligence and reliab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B are found to have not complied with the requirement of sub-regulation 10(n) and thus imposition of penalty in not being proactive for fulfilling of regulation 10(n) of CBLR, 2013 alone, is appropriate and justifiable. 13. In view of the foregoing discussions, we do not find any merits in the impugned order passed by the learned Principal Commissioner of Customs (General), Mumbai in revoking the CB license of the appellants; and for forfeiture of entire security deposit, inasmuch as there is no violation of Regulation 10(a), 10(d) and 10(m) of the CBLR, 2018, and the findings in the impugned order is contrary to the facts on record. However, in view of the failure of the appellants to have acted in a proactive manner in fulfillment of the obligation under Regulation 10(n) ibid, particularly when they had received the documents from importer through intermediary, we find that it is justifiable to impose a penalty of Rs.10,000/-, which would be reasonable and would be in line with the judgement of the Hon ble Supreme Court in the case of K.M. Ganatra (supra), in bringing out the importance of crucial role played by a Customs Broker. 14. Therefore, by modifying the impugned order to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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