2023 (5) TMI 773 - AT - Customs

Appellate tribunal overturns penalties against Customs Broker citing exoneration and procedural missteps

The appellate tribunal set aside the decision of the Principal Commissioner to penalize, forfeit the security deposit, and revoke the license of the ... Revocation of Customs Broker License - forfeiture of security deposit - penalty - evasion of Customs Duty - misdeclaring description, quantity and value with the intention to circumvent the applicability of mandatory registration required for the import of these goods from the Central Insecticides Board, under Section 9 of the Insecticides Act, 1968 - actual goods concealed from prohibited goods under the Schedule of Insecticides Act - HELD THAT:- If the Customs broker had been acting as per the authority letter which was mentioned in the statement of Customs broker as has been accepted by the Joint Commissioner while adjudicating the above case, the charge for contravention of Regulation 10(d), (e) & (m) cannot be sustained. Undisputedly the Joint Commissioner has exonerated the Customs broker of the proceedings initiated under Custom Act on the basis of the said authority letter. These findings have not been challenged by the Revenue before any appellate authority. The findings recorded in the impugned order that Customs broker was actively involved in importation of the goods in contravention of the provisions of Customs Act, 1962, read with Section 9 and 17 of the Insecticides Act, 1968 cannot be held to be proper. The decision in the case of DHAKHANE & CO VERSUS COMMISSIONER OF CUSTOMS (GENERAL) , NCH, MUMBAI [2014 (12) TMI 771 - CESTAT MUMBAI] relied upon by the Revenue is not applicable to the facts of the present case as in the said decision the authority letter issued by exporter in favour of CHA was fabricated. In the case of PRIME FORWARDERS VERSUS COMMR. OF CUSTOMS, KANDLA [2007 (11) TMI 37 - CESTAT, AHMEDABAD], Tribunal has observed that As regards, penalty on M/s. Prime Forwarders, customs house agent, no evidence of their involvement or their knowledge about mis-declaration has been brought on record. The Commissioner has observed that being a responsible CHA, he should have informed the correct description of the goods. However, we find that the said CHA has acted on the basis of the documents given to them and there is nothing to show that he was aware of the containers being stuffed with Ferro Titanium instead of brass scrap. As such we find no justification for imposition of penalty upon the said appellant. Nothing has been brought on record to show that contravention of Regulation 10(d), (e) & (m) of the CBLR, 2018 can be established against the appellant. The proceedings initiated against the appellant are also not in line with the Advisory issued by the Principal Chief Commissioner of Customs, Mumbai. The impugned order cannot be sustained and the same is set aside - Appeal allowed. Issues Involved:1. Imposition of penalty on the Customs Broker (CB).2. Forfeiture of the security deposit by the CB.3. Revocation of the CB License.4. Alleged contravention of Regulations 10(d), 10(e), and 10(m) of the Customs Brokers Licensing Regulations (CBLR), 2018.5. Validity of the authority letter and its implications.6. Adherence to the Advisory No.01/2022 regarding Customs Brokers' involvement in interpretative disputes.Issue-wise Detailed Analysis:1. Imposition of Penalty on the Customs Broker:The Principal Commissioner imposed a penalty of Rs. 50,000 on the Customs Broker (CB) under Regulation 18 of the CBLR, 2018. This decision was based on allegations that the CB did not exercise due diligence in advising the client to comply with the provisions of the Customs Act and other allied Acts, as required under Regulation 10(d), 10(e), and 10(m) of the CBLR, 2018. The CB was accused of facilitating the improper importation of goods by not verifying the genuineness and credentials of the actual importer, thus violating their obligations.2. Forfeiture of the Security Deposit by the CB:The Principal Commissioner ordered the forfeiture of the entire amount of the security deposit furnished by the CB under Regulation 14 of the CBLR, 2018. This action was taken due to the CB's alleged failure to comply with the provisions of Regulation 10(d), (e), and (m) of the CBLR, 2018.3. Revocation of the CB License:The Principal Commissioner also ordered the revocation of the CB License No. 11/2391 under Regulation 14 of the CBLR, 2018. The CB was required to surrender the original license and all related cards immediately. This decision was made without prejudice to any other actions that might be taken against the CB and their employees under the Customs Act, 1962, or any other applicable laws.4. Alleged Contravention of Regulations 10(d), 10(e), and 10(m) of the CBLR, 2018:The impugned order detailed the specific allegations against the CB:- Regulation 10(d): The CB failed to advise the client to comply with the provisions of the Act and did not bring non-compliance to the notice of the Deputy Commissioner or Assistant Commissioner of Customs.- Regulation 10(e): The CB did not exercise due diligence to ascertain the correctness of any information imparted to the client related to cargo clearance.- Regulation 10(m): The CB did not discharge duties with utmost speed and efficiency.The Principal Commissioner concluded that the CB was actively involved in the improper importation of goods and failed to fulfill their obligations under these regulations.5. Validity of the Authority Letter and Its Implications:The Joint Commissioner had previously exonerated the CB in proceedings under the Customs Act, based on an authority letter issued by the importer. The Joint Commissioner found that the CB acted on the authority letter provided by the importer and was not aware that the goods were liable for confiscation. These findings were not challenged by the Revenue, and the CB was exonerated from any penal provisions under Section 112(a) of the Customs Act, 1962.6. Adherence to the Advisory No.01/2022 Regarding Customs Brokers' Involvement in Interpretative Disputes:The Advisory No.01/2022 issued by the Principal Chief Commissioner of Customs, Mumbai, advised officers not to invoke violations of the CBLR, 2018, and not to make Customs Brokers co-noticees in cases involving interpretative disputes regarding classification, exemption notification benefits, and valuation. The impugned order did not align with this advisory, as there was no evidence of the CB's complicity in the illegal importation of goods or any wrongful intent or prior knowledge about the violation.Conclusion:The appellate tribunal found that the charges against the CB for contravention of Regulation 10(d), (e), and (m) could not be sustained. The CB was exonerated by the Joint Commissioner based on the authority letter, and these findings were not challenged. The tribunal also noted that the proceedings against the CB were not in line with the advisory issued by the Principal Chief Commissioner of Customs, Mumbai. Consequently, the impugned order was set aside, and the appeal was allowed.