2022 (4) TMI 1372 - AT - Customs

Appeal Allowed, Penalties Set Aside. Timely Notice, Lack of Evidence, Unjust Penalties.

The appeal was allowed, setting aside the order under challenge. The Tribunal concluded that the Show Cause Notice was issued within the prescribed ... Revocation of Customs Broker License - time lines as prescribed under Regulation 17 of CBLR, 2018 (Regulation 22 of CBLR, 2013) has not been followed - HELD THAT:- Upon perusal of Regulation 22, it can be seen that an independent right is issued to the Commissioner to initiate action de hors the enquiry under other regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. The purpose, for which such time limit has been prescribed, is to curb the smuggling of goods and in the result to cancel the licenses of the brokers if they are involved and to impose penalty. The interpretation of a statute must always be to give a logical meaning to the object of the legislation and the aim must be to implement the provisions rather than to defeat it - the use of the language “shall” in the regulation cannot be termed as “directory” as one of the consequence of the action is the revocation of the licence and it would also pave way for inaction by the officials breeding corruption. If the CHA prima facie appears to be innocent and honest and there is inordinate and unreasonable delay on the part of the department while investigating the matter and issuing the Show Cause Notice to said CHA, the word “shall” in Regulation 20(1) has to be treated as mandatory. Per contra when prima facie there is allegation of fraud /mis-representation / suppression or any such omission which has resulted into the alleged offence and the delay beyond 90 days was for the reasons beyond the control of the department that the said word “shall” has to be treated as directory in nature. From the time chart above, it is clearly apparent that the date of knowledge of Commissioner of Customs (Airport & General) about the first report of impugned violations against the appellant was received by him on 23.5.2019. The show cause notice issued by him on 16.8.2019 is well within the said Notification period of 90 days. Once the Show cause Notice is well within the period of 90 days, it is held that learned Counsel has unnecessarily engaged himself arguing about the time being mandatory instead of being directory. The arguments of the appellant on the ground of limitation are therefore not sustainable. The case law relied upon by him on this issue is held not applicable to the facts of the present case. Violation of Regulation 10A, 10D, 10E, 10N of CBLR, 2018 (Erstwhile Regulation 11 of CBLR, 2013) - HELD THAT:- It is observed that violation of Regulation 10A/11A of CBLR, 2018/2017 has been alleged on the ground of failure of appellant to produce or submit at the investigation stage, the requisite authorization in his favour by the importer in his favour. However, it is apparent that the authorization was produced before the Inquiry Officer. In view of the said observation, the findings that the later submission of the authorization shall not absolve the Customs Broker of his wrong doing are not held sustainable. It is held that submitting the authorization was a mere procedural formality. It admittedly was submitted before the impugned order was passed. It is held that violation of Regulation 10A has wrongly been alleged upon the appellant. It is also coming from their statement that said Sonu only used to handover the papers to the appellant. There is nothing in their statement alleging any fault on part of the appellant. Since there is no other evidence than the said statement, it cannot be held that the appellant had any knowledge about the consignment to have been mis-declared. The registered address of the importer has been mithai shop but the same cannot be alleged to have been fault of the Customs Broker. Otherwise also, it is not the case that none for the importer was found at the said registered address. The appellant no doubt has filed Bill of Entry in the present case. But the same has been filed on the basis of material given to him by his client. He has expressed his bonafide and denied in-correctness of those documents. Merely because there is evidence on record to falsify the said statement, Customs Broker cannot be held liable for the penal action. Otherwise also, he is held not responsible for verifying the contents of his clients. There is no cogent evidence produced by the Department to prove the alleged failure on part of the CHA, the appellant. The penalties under section 112 and 114 AA of Customs Act, 1962 are therefore, held to have wrongly been imposed upon him. Appeal allowed - decided in favor of appellant. Issues Involved:1. Alleged violation of timeline prescribed under Regulation 17 of CBLR, 2018.2. Alleged violation of Regulation 10A and 11E of CBLR, 2018.3. Imposition of penalties under section 112 and 114AA of the Customs Act, 1962.Detailed Analysis:Issue 1: Alleged Violation of Timeline Prescribed Under Regulation 17 of CBLR, 2018The appellant challenged the revocation of their Customs Broker Licence primarily on the grounds that the timelines prescribed under Regulation 17 of CBLR, 2018 were not followed. The Commissioner of Customs allegedly failed to issue the Show Cause Notice within 90 days from the date of the order confirming the violation of Regulation 10 and 11 of CBLR, 2018. The Department countered by stating that the Show Cause Notice was issued within the stipulated period, calculated from the date of receipt of the offence report. The timeline was scrutinized, and it was observed that the Commissioner of Customs received the report on 23.05.2019 and issued the Show Cause Notice on 16.08.2019, which was within the 90-day period. Consequently, the argument of the appellant regarding the timeline was found to be unsustainable.Issue 2: Alleged Violation of Regulation 10A and 11E of CBLR, 2018The appellant was accused of violating Regulation 10A and 11E of CBLR, 2018, for failing to produce the requisite authorization from the importer during the investigation. However, the authorization was later submitted before the Inquiry Officer, indicating that the initial failure was a procedural formality rather than a substantive violation. Regarding Regulation 11E, the Department's allegations were based on statements from individuals associated with the importer, who did not implicate the appellant directly. The evidence suggested that the appellant acted based on the information provided by the importer and had no knowledge of any mis-declaration. Therefore, the findings of violation of Regulations 10A and 11E were deemed unsustainable.Issue 3: Imposition of Penalties Under Section 112 and 114AA of the Customs Act, 1962The penalties under sections 112 and 114AA were imposed on the appellant for alleged mis-declaration and suppression of information. The Tribunal found no cogent evidence to prove the appellant's failure or involvement in the alleged offenses. The appellant had acted on the instructions of the importer, and there was no evidence to suggest that the appellant was aware of any mis-declaration. The Tribunal referenced previous decisions, emphasizing that a Customs Broker cannot be held liable for mis-declarations made by the importer if they acted in good faith based on the information provided by the client. Consequently, the penalties were deemed to have been wrongly imposed, and the order was set aside.Conclusion:The appeal was allowed, setting aside the order under challenge. The Tribunal concluded that the Show Cause Notice was issued within the prescribed timeline, and there was no substantial evidence to prove the appellant's failure or involvement in the alleged violations. The penalties imposed under sections 112 and 114AA of the Customs Act, 1962, were found to be unjustified.