2021 (2) TMI 1149 - AT - Customs

Customs Broker License Revocation Overturned, Penalties Upheld

M/s. HSN Shipping Pvt. Ltd. Versus Commissioner of Customs Chennai

The Tribunal set aside the revocation of the appellant's Customs Broker license due to lack of substantial evidence supporting allegations of unauthorized ... Revocation of Customs Broker License - forfeiture of security deposit - illegal removal of container / goods - It was found that the Bills of Entry was not filed by the importer and the container was detained and lying at Viking CFS. The same container was removed illegally from Viking CFS by forging the import clearance documents - HELD THAT:- Apart from 108 statement of the Shri A.C. Hari Babu, the department has not been able to adduce any evidence to support such allegation that instead of the appellant herein, Sathish Kumar had done the filing of bill of entry and the clearance activities. So also there is no evidence to show the passing of consideration of ₹ 1,000/- per bill of entry from Sathish Kumar to the appellant herein. Although it is alleged that earlier the 10 bills of entry for M/s. Sky and Sea Exports were filed by Shri Sathish Kumar and that appellant did not collect KYC documents etc., all the goods as per these previous 10 bills of entry which have been for M/s. Sky and Sea Exports have been cleared and there are no complaints. There is no case for the department that the bill of lading with regard to Container No. FCIU9286908 for M/s. Sky and Sea Exports detained by SIIB was filed by the appellant or Sathish Kumar. The appellant had nothing to do with such import of goods by M/s. Sky and Sea Exports. For the mere reason that the appellant had filed earlier bills of entry for M/s. Sky and Sea Exports cannot be a ground to hold that the appellant has violated provisions of CBLR when the goods relating to the 10 bills of entry have been cleared and without any compliants. Bill of entry filed for M/s. Raj Enterprises dated 19.5.2017 - HELD THAT:- Without proving the entire link between these persons the appellant cannot be implicated only for the mere reason that they have filed the bill of entry. So also there is no evidence to prove that appellant allowed other persons to work customs clearance activities or that to file forged documents. There are no evidence to show that the appellant engaged unauthorized persons who faked customs out of charge documents and also paid for the CFS operations running into lakhs in cash. There is no evidence before us to show any payment made for CFS operations or the faking of customs out of charge documents by the appellant herein. However, unlike the first case of M/s. Sky and Sea Exports, in this case, the appellant has acted as Custom Broker and has filed the bill of entry for M/s. Raj Enterprises. The container got detained and appellant ought to have been careful till the goods are cleared. However, the omission would not call for a harsh punishment of revocation of licence. We therefore are of the considered opinion that mere forfeiture of security deposit as well as penalty would suffice. The impugned order is to be modified to the extent of setting aside the revocation of licence of the appellant - Appeal allowed in part. Issues Involved:1. Revocation of Customs Broker license.2. Forfeiture of security deposit.3. Imposition of penalty for violation of provisions under CBLR, 2018.4. Alleged unauthorized activities by third parties using the appellant’s identity.5. Alleged involvement in the illegal removal of containers.Issue-wise Detailed Analysis:1. Revocation of Customs Broker License:The appellant, a Customs Broker, was aggrieved by the revocation of their license by the Commissioner of Customs, Chennai. The revocation was based on allegations that the appellant allowed unauthorized persons to file bills of entry and perform other customs-related activities under their identity, which led to the illicit clearance of detained containers. The Tribunal found that there was no substantial evidence to prove that the appellant allowed unauthorized persons to use their identity for customs clearance activities. The statements from the appellant's owner did not conclusively establish the involvement of unauthorized persons in the customs clearance process. Therefore, the Tribunal set aside the revocation of the license, stating that the appellant's omission did not warrant such a harsh punishment.2. Forfeiture of Security Deposit:The security deposit of Rs. One lakh was forfeited by the Commissioner of Customs. The Tribunal upheld this forfeiture, noting that although the appellant's license revocation was set aside, the forfeiture of the security deposit was justified due to the appellant's lack of due diligence in ensuring the security of their customs clearance activities.3. Imposition of Penalty:A penalty of Rs. 50,000/- was imposed on the appellant for violating provisions under CBLR, 2018. The Tribunal did not disturb this penalty, affirming that the appellant's actions, while not warranting license revocation, did merit a financial penalty for their lack of oversight and due diligence.4. Alleged Unauthorized Activities by Third Parties:The allegations centered around the appellant allowing unauthorized persons, namely Shri Sathish Kumar and Shri Syed Muyeen Ahmed, to file bills of entry and perform customs clearance activities. The Tribunal found that there was no concrete evidence to support these allegations. The statements from the appellant's owner were not corroborated by any other evidence, and there was no proof of any payment or facilitation by the appellant to these unauthorized persons. The Tribunal concluded that the allegations were based on presumptions and assumptions without substantial proof.5. Alleged Involvement in Illegal Removal of Containers:The two specific instances involved:- M/s. Sky and Sea Exports: The appellant was implicated because they had previously filed bills of entry for this company. However, there was no evidence that the appellant was involved in the illegal removal of the container detained by SIIB. The Tribunal noted that the appellant's previous filings for M/s. Sky and Sea Exports did not constitute a violation of CBLR provisions.- M/s. Raj Enterprises: The appellant filed a bill of entry for a container that was later illegally removed from the CFS using forged documents. The investigation revealed that the removal was orchestrated by other individuals, and there was no evidence linking the appellant to these individuals or the illegal removal. The Tribunal noted that while the appellant should have been more vigilant, their actions did not justify the revocation of their license. However, the Tribunal upheld the forfeiture of the security deposit and the penalty as a measure of accountability.Conclusion:The Tribunal modified the impugned order by setting aside the revocation of the appellant's Customs Broker license but upheld the forfeiture of the security deposit and the imposition of the penalty. The appeal was partly allowed, emphasizing the importance of due diligence and oversight by Customs Brokers in their operations.