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TMI Blog2024 (6) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant was searched on 13.02.2019 and several incriminating documents regarding clearance of non bonafide baggage were recovered. Thereafter, show cause notice was issued and on conclusion of the proceedings, Adjudication authority as per the impugned order revoked the Customs Broker license of the Appellant and also ordered for forfeiture of the security deposit of Rs. 75,000/-. In addition to that, Adjudication authority also imposed penalty of Rs.50,000 under Regulation 18(1) of Customs Broker Licensing Regulation, 2018. Aggrieved by said order, present appeal is filed. Considering the revocation of the license, petition for early hearing was allowed. 2. When the appeal came up for hearing, Learned Counsel for the Appellant submits that the proceedings initiated against the Appellant are prima facie illegal and unsustainable. The Adjudication authority relied on a large number of documents to substantiate the allegations and the documents relied by the Adjudication authority are not in compliance with Section 138C of the Customs Act, 1962, which mandates certification in terms of sub-section 4 of Section 138C of the Customs Act, 1962. The Learned Counsel also drew our at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation. However, the Inquiry officer and the Adjudication authority refused to extend the opportunity for cross examination though they have relied on the statement recorded from Smt. Shiny Vinu and Smt. Bincy who were exclusively handling the computer system of the Appellant. The Adjudication authority also relied on the statement of Shri. K.K, Sathish, Shri. Mohammad Kutty Manjadikkal. However, the copies of the statement were not furnished as part of the relied upon documents and when cross-examination sought under Regulation 17(4) CBLR, 2018, it was also denied. 4. The Learned Counsel further submits that though the allegations were made regarding illegal import made by few NRIs, the consignees on whose name the goods were imported were not summoned in any of the proceedings. Further there is no allegation that the Appellant had any undue financial benefit by abetting such illegal import of goods. Moreover, the Appellant has complied with KYC norms as per the instructions issued by the respondent from time to time. Regarding due diligence, the Appellant have no opportunity to verify the contents in the imported goods before conducting examination of the same by Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t & ACC), Kolkata (2023) 2 Centax 34 (Tri.Cal) iii. Perfect Cargo & Logistics Vs. C.C (Airport & General), New Delhi 2021 (376) E.L.T. 649 (Tri.-Del) iv. Jeen Bhavani International Vs. Commissioner of Customs, Nhava-Sheva-III (2023) 6 Centax 11 (Tri. Mumbai) v. Commissioner of Customs, Nhava Sheva-III Vs. Jeen Bhavani International (2023) 6 Centax 14 (SC) vi. M/s. R.P Cargo Handling Services Vs. Commissioner of Customs (Airport & General) in Customs Appeal No.50490 of 2019 vii. Habib UZ Zaman Vs. Commissioner of Customs, New Delhi reported in 2021 (376) ELT 666 (Tri.Del) viii. Assistant Collector of Customs, (Prev), Bombay Vs. Ahmed Abdul Karim 2009 (247) ELT 97 (Bom) ix. Sourabh Aggarwal Vs. Commissioner of Customs, New Delhi 2020 (373) ELT 676 (Tri.Del) x. Naman Gupta Vs. Commissioner of Customs (Airport & General) (2024) 15 Centax 329 (Tri.Del) xi. Andaman Timber Industries Vs. Commissioner of C.Ex., Kolkatta-II 2015 (324) ELT 641 (SC) xii. Mayank Agarwal Vs. Commissioner of Customs Preventive, Lucknow (2023) 12 Centax 296 (Tri.All) xiii. KVS Cargo Vs. Commissioner of Customs (General) NCH, New Delhi MANU/DE/4911/2018 xiv. Total Clearance Vs. Principal Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0(d) and Regulation 10(e) of CBLR, 2018. 10. On merit, Learned AR submits that the appellant had pre- knowledge regarding the illegality of importing non-bonafide fide baggage. Regarding violation of regulation 10(d) of CBLR 2018, the Learned AR submits that though the appellant claims that none of the importer or passengers, who had filed baggage declaration have deposed that appellant has not advised them about provision of law, Section 10(d) of CBLR 2018 casts specific responsibility on the appellant that the information regarding Act or Rules and consequence of non-compliance should have been advised to the importer. Moreover, statement recorded from passenger Mr. Riyab Basher nowhere said that the appellant had briefed him about provision of the Act and allied rules and regulations. Regarding information furnished by appellant vide Letter dated 12.02.2009, it is only an after-thought to mitigate the doubt about the appellant. Regarding violation of 10(d) of CBLR 2018, It is admitted that as per section 10(d) CBLR 2018, duty is cast on the Customs Broker to advise his clients to comply with the provision of law and in case client fails to comply with the provision, it should h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prise -1997 (92) E.L.T A069 (S.C). 13. Regarding cross examination, appellant sought cross examination as per Regulation 17(4) CBLR, 2018. As per the law laid down by Hon'ble Supreme Court in the matter of M/s Andaman Timber Industries Vs. Commissioner of C. Excise, Kolkata-II (reported in 2017 (50) STR 93(SC)) "6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Before forming such an opinion, the quasi-judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi-judicial authority is subject to judicial review by the appellate authority. The aggrieved party can always challenge that in a particular case invocation of such a provision was not warranted." 15. As regarding non-compliance with the provisions of Section 138C of the Customs Act, 1962, unless the requirement of Section 65B of the Evidence Act is satisfied, such evidence cannot be admitted in any proceeding. Since Section 138C of the Customs Act is pari materia to Section 65B of the Evidence Act, the evidence in the form of computer printouts, etc., recovered during the course of investigation can be admitted only subject to the satisfaction of the sub-section (2) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; Thus a duty is cast on the Customs Broker to advise his clients to comply with the provision of law and in case the client failed to comply with the provision, it should have been brought to the notice of the Customs Authority. Learned AR submits that while recording statements from the passengers, nowhere it came out that appellant has briefed the passengers about the provisions of Act or other allied Act Rules and Regulations on non-compliance. The said provision doesn't cast a responsibility on the Customs broker to impart each and every importer/passenger regarding provision of Customs Act or other allied Rules and Regulation. The responsibility of Customs Broker is only to advise the importer regarding concerned provisions only when it is brought to the notice of the Customs broker that the goods imported by the passenger or importer is imported or being exported in violation of any provision of law. In the present case, there is no way for the Customs broker to find out whether the baggage brought by the passenger belongs to them or any other person. It is revealed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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