2024 (5) TMI 1007 - AT - Customs

Customs Broker's Penalty Overturned; Tribunal Orders Security Deposit Refund Due to Employee's Independent Actions.

M/s. SP Agency Versus Commr. of Customs (Admin & Airport), Kolkata

The Tribunal set aside the penalty and forfeiture imposed on the Customs Broker, ordering a refund of the security deposit. The decision was based on ... Customs Broker - Carrying illegal activities - forfeiture of full amount of security deposit - Levy of Penalty - Violation of Regulation 19(8) of CHLR, 2004 - HELD THAT:- A cursory glance of that proceedings shows that the main noticee was Marine Vission. The allegation was towards fraudulent claiming of Duty Drawback on the fraudulently exported consignments in which it was alleged that Sri Sanjeev Kumar Jha had assisted in such claims. While Sri Sanjeev Kumar Jha was a noticee and a penalty of Rs. 3 lakhs was imposed on him, no findings have been given towards his role in that particular case. Even otherwise, in the entire proceedings in that case, nothing has emerged to the effect that Sri Sanjeev Kumar Jha holder of H-Pass has acted on behalf of the present Appellant M/s. S P Agency. Since the present Appellant was not even a noticee in that case, the question of present Appellant having connived with Sri Sanjeev Kumar Jha in respect of the exports done by Marine Vission cannot be deduced by any stretch of imagination. Thus, no case has been made out to the effect that Sri Sanjeev Kumar Jha has acted on behalf of the present Appellant. Mere procurement of H-Card by S P Agency to facilitate the working of Sanjeev Kumar Jha cannot be the reason for the present proceedings. A person holding H-Card, if he acts for same third party without the knowledge of the CHA, in what way CHA would be able to control all the activities undertaken by the H-Card Holder is not known. All these factual details show that no case has been made out against the Customs Broker. Even the Enquiry Report of the Enquiry Officer after complete investigation, has absolved the Customs Broker. Thus, set aside the impugned order imposing penalty of Rs. 50,000/- and forfeiture of full amount of security deposit furnished by the Customs Broker. The Appeal is disposed off thus. Issues involved: Alleged violation of Regulation 19(8) of CHLR, 2004 (Now Regulation 13(12) of CBLR, 2018) by a Customs Broker leading to penalty and forfeiture of security deposit.Summary:Issue 1: Initiation of Proceedings based on OIO No. KOL/CUS/AIRPORT/39/2018:The Appellant, a Customs Broker, was issued a Show Cause Notice based on an Offence Report connected to exports made by Marine Vission. The Appellant argued that he was not involved in the exports and was not even a noticee in the related OIO. The Enquiry Officer's report confirmed that the Appellant was not connected to the alleged offence committed by an employee. The Adjudicating Authority imposed a penalty and ordered forfeiture based on failure to supervise the employee.Issue 2: Alleged Connivance and Failure to Act:The Enquiry Officer investigated whether the Appellant connived with an employee to obtain an H-Pass and why no action was taken against the employee. It was found that the Appellant did request the cancellation of the H-Pass, absolving him of connivance. The Adjudicating Authority, however, held the Appellant responsible for failing to supervise the employee's conduct.Issue 3: Lack of Connection to Alleged Offence:The proceedings were based on the Appellant's alleged contravention of Regulation 19(8) of CHLR, 2004. However, it was established that the employee acted on behalf of another entity, not the Appellant. The Tribunal found no evidence implicating the Appellant in the alleged offence.In conclusion, the Tribunal set aside the penalty and forfeiture, ordering a refund to the Appellant.