2024 (4) TMI 695 - AT - Customs

Customs broker license revocation partially overturned, security deposit forfeiture reduced from Rs.15,000 to Rs.5,000 under Regulation 10(e)

Kismat Clearing Agency Versus Commissioner of Customs (General), Mumbai

CESTAT Mumbai partially allowed the appeal regarding customs broker license revocation and security deposit forfeiture. The tribunal found that the ... Revocation of Customs Broker License - forfeiture of security deposit - imposition of penalty - fulfilment of obligations as required under CHALR, 2004/CBLR, 2018 or not - undervalued goods or not - mis-declaration in import of goods in order to evade payment of customs duty - contravention of Regulations 13(d), 13(e) and 13(n) of CHALR, 2004 corresponding to 10(d), 10(e) and 10(m) of CBLR, 2018. Violation of Regulation 10(d) - HELD THAT:- The appellants have duly filed the bills of entry as per the documents given by the importers and they were not aware of the purported mis-declaration of the imported goods. In the instant case, the violations were found by the department only on the basis of specific information received by NSPU and further investigations carried out thereafter. 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. Further, as the purported mis-declaration of imported goods was not known to the appellants, the non-compliance by the importer in respect of imported goods could not have been brought to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) by the appellants CB - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable. Violation of Regulation 10(e) - HELD THAT:- The documents submitted by the importer to the appellants CB included invoice, packing list, Bill of lading and country of origin certificate. The copy of these documents were perused and we find that the Commercial invoice and Bill of lading No. SHASEA03943 specifically mentions the name and address of the supplier/consignor as Hangzhou Westlake Automotive Spare Parts Group, INC., Hangzhou, China. Besides the country of origin certificate issued by China Trade Council specify that imported goods are of HS code 8708.93 of Harmonized System of international classification and that the goods are of origin of the People’s Republic of China. However, while declaring the imported goods in the B/E, the tariff classification mentioned in these documents were not cross verified by the appellants CB - the conclusion arrived at by the Commissioner of Customs (General) has merits and his findings on the violation of said Regulation 10(e) ibid is sustainable on basis of above documents. Violation of Regulation 10(m) - HELD THAT:- Before the imported goods were taken up for investigation, the customs duty on declared value was duly paid on 13.07.2009 i.e., the same day of filing B/E. Even during investigation proceedings, right from detailed examination of the goods under panchnama proceedings, the appellants CB's representative was present and cooperated with investigation authorities. Further, voluntary statements were also given during the investigation by the partner Shri Lalit Agarwal, of appellants CB and S/Shri Sampat Phatangare, Arjun Nishit, employees of the appellants CB. The details of Retail Sale Price (RSP) in respect of all the 89 items of imported goods had been declared in the B/E. Further, there is no case of importer or any other person having complained about the inefficiency or delay in clearance of the imported goods by the appellants CB. 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 non supported by any evidence and thus it is not legally sustainable. The appellants could have been proactive in fulfilling their obligation as Customs Broker for exercising due diligence, particularly when the import documents indicated the correct tariff classification. Thus, to this extent the appellants CB are found to have not complied with the requirement of Regulation 10(e) ibid and thus partial forfeiture of security deposit for an amount of Rs.5000/- for not being proactive for fulfilling of obligation under Regulation 10(e) ibid alone, is appropriate and justifiable. There are no merits in the impugned order passed by the learned Commissioner of Customs (General), Mumbai in forfeiture of security deposit of Rs.15,000/- for violations under Regulations 13(d), 13(e) and 13(n) of CHALR, 2004 corresponding to 10(d), 10(e) and 10(m) of CBLR, 2018 - in view of the failure of the part of appellants in not having acted in a proactive manner in fulfillment of the obligation under Regulation 10(e) ibid, corresponding to 13(e) of CHALR, 2004 particularly when they had received the documents indicating the correct HS code for the imported goods, it is found that it is justifiable to partially forfeit the security deposit to the extent of Rs.5,000/-, which would be reasonable, commensurate with the violation and would be in line with the judgement of the Hon’ble Supreme Court in the case of COMMISSIONER OF CUSTOMS VERSUS M/S K.M. GANATRA & CO. [2016 (2) TMI 478 - SUPREME COURT], in bringing out the importance of crucial role played by a Customs Broker. Appeal allowed in favour of appellant. Issues Involved:1. Violation of Regulations 13(d), 13(e), and 13(n) of CHALR, 2004 corresponding to 10(d), 10(e), and 10(m) of CBLR, 2018.2. Partial forfeiture of the security deposit.Summary:Issue 1: Violation of Regulations 13(d), 13(e), and 13(n) of CHALR, 2004/10(d), 10(e), and 10(m) of CBLR, 2018The appellants, M/s Kismat Clearing Agency, were accused of violating Regulations 13(d), 13(e), and 13(n) of CHALR, 2004, corresponding to 10(d), 10(e), and 10(m) of CBLR, 2018. The specific violations included failure to advise the client to comply with the provisions of the Act, lack of due diligence in ascertaining the correctness of information, and inefficiency in discharging duties.The Tribunal found that the appellants had declared the imported goods based on documents provided by the importer and were unaware of any mis-declaration. The violations were discovered only after specific information was received by NSPU, and the appellants could not be held responsible for the mis-declaration and undervaluation of goods. Therefore, the violation of Regulation 10(d) was not sustainable.Regarding Regulation 10(e), the Tribunal agreed with the Commissioner that the appellants did not exercise due diligence in verifying the tariff classification mentioned in the documents provided by the importer. Thus, the violation of Regulation 10(e) was upheld.For Regulation 10(m), the Tribunal found no evidence to support the claim that the appellants were inefficient in their duties. The customs duty was paid on time, and the appellants cooperated with the investigation. Therefore, the violation of Regulation 10(m) was not legally sustainable.Issue 2: Partial Forfeiture of Security DepositThe Commissioner of Customs (General) had ordered partial forfeiture of the security deposit of Rs.15,000/- for the violations. The Tribunal found that the appellants' failure to act proactively in verifying the correct HS code for the imported goods justified a partial forfeiture of Rs.5,000/-. The Tribunal modified the impugned order to reflect this partial forfeiture, deeming it reasonable and commensurate with the violation.In conclusion, the appeal was allowed in favor of the appellants, with a modification to the impugned order to partially forfeit the security deposit to the extent of Rs.5,000/-.