2025 (7) TMI 363 - AT - Customs

CHA penalty upheld for failing to ensure importer appearance and providing false summons declaration under Sections 112, 114, 114AA

Shri Ved Joon Versus Principal Commissioner of Customs (Import) - New Delhi ICD TKD

CESTAT New Delhi dismissed the rectification application filed by a Custom House Agent (CHA) challenging penalty imposition under Sections 112, 114, and ... Rectification of mistake - error apparent on the face of record or not - imposition of penalty on the appellant (Custom House Agent (CHA)) as well as under Section 112 and / under Section 114 and / 114AA of Customs Act 1962 - additional submissions have not been considered neither in the Order-in-Original nor in the impugned final order - violation of principles of natural justice - HELD THAT:- It is observed that the additional submissions were to the effect that the appellant had no knowledge about the mis-declared and overvalued consignment and that the appellant had received all KYC documents prior processing the Bill of Entry. Hence, the mens rea of CHA has wrongly been concluded in the illegality committed by the importer M/s. D.S. Export Industry. Though original adjudicating authority is silent about these grounds but we observe from the impugned final order that it records an admitted fact that the appellant had never met the importer. Though KYC documents of importer was produced at the first available opportunity by the appellant but the appellant, as per his statement, himself was not aware as from whom those KYC documents of importer were collected - It is apparent on record and is nowhere being denied by the appellant that none of them appeared despite repeated summons nor even the proprietor of M/s. D.S. Export Industry appeared despite that it was the responsibility of CHA/appellant to make them appeared before the concerned authorities. The appellant had given a wrong declaration vide letter dated 09.10.2023 that he had delivered the copy of the summon to M/s. D.S. Export Industry at the registered address whereas the fact exposed during the investigation was that M/s. D.S. Export Industry is not existing at the registered address - The CHA had filed Bill of Entry for the clearance of such mis-declared and grossly overvalued goods within two days of being engaged as per their own statement. There is no authorization for receiving the KYC documents by the appellant from his client M/s. D.S. Export Industry irrespective those documents were produced before the concerned authorities and even before this Tribunal. The contents of the documents were found incorrect as the exporter was not found available at the address mentioned in those documents. It stands clear that all the additional submissions and documents filed by the appellant have been properly dealt with in the impugned final order. There is no error apparent on record in the Final Order - Application dismissed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Tribunal in the present matter are:(a) Whether there is an apparent mistake or error in the impugned final order dated 11.02.2025, specifically regarding the failure to consider the appellant's additional submissions and documentary evidence, including KYC documents and authorization letters;(b) Whether the appellant, proprietor of a Custom House Agent (CHA), exercised due diligence in obtaining proper authorization from the importer and complied with principles of natural justice;(c) Whether the appellant can be held liable for penalties under Sections 112, 114, and 114AA of the Customs Act, 1962, in connection with alleged mis-declaration, overvaluation, and non-compliance in the import of goods;(d) Whether the appellant's contention that the corrigendum dated 16.11.2023, which impleaded the appellant as a noticee, should affect the limitation and applicability of penalties;(e) Whether the nature of the bill of entry as a warehouse/bond bill of entry, rather than a regular bill of entry, is a relevant factor that was ignored in the impugned final order;(f) Whether the findings of connivance, collusion, or abetment between the appellant and the importer are justified based on the facts and evidence on record.2. ISSUE-WISE DETAILED ANALYSISIssue (a): Consideration of Additional Submissions and Documentary EvidenceThe appellant contended that the additional submissions dated 22.12.2023, including KYC documents, authorization letters, and procedural compliance such as mode of service of personal hearing notices, were not considered by either the original adjudicating authority or the Tribunal in the impugned final order. The appellant argued this omission amounted to an error apparent on record.The Tribunal examined the record and found that the additional submissions and documents were indeed placed on record and considered. The impugned final order explicitly refers to the appellant's failure to produce valid authorization and the questionable provenance of KYC documents. The Tribunal noted that the appellant's own statements and those of his representatives (G-Card holders) failed to establish proper receipt and verification of these documents. The Tribunal concluded that the submissions were not ignored but evaluated and found insufficient to absolve the appellant of liability.Issue (b): Due Diligence and Authorization from ImporterThe appellant asserted that there was valid authorization dated 12.10.2021 from the importer, which was enclosed with prior correspondence and resubmitted with additional submissions. The appellant denied any direct meeting with the importer except with a person named Shri Nikhil Kumar, whose authority was not established. The appellant argued that absence of authorization in favor of the person representing the importer should negate findings of connivance or negligence.The Tribunal analyzed the evidence and found that the appellant and his G-Card holders could not identify the source of the KYC documents or verify the authority of persons representing the importer. The importer was not found at the registered address, and no authorization was produced in favor of the named representatives. The Tribunal observed that the appellant failed to exercise due diligence in verifying the authenticity of the importer and the authorization, which is a critical obligation under the Customs Act. The Tribunal held that these failures justified the imposition of penalties and rejection of the appellant's defense.Issue (c): Liability for Penalties under Customs ActThe appellant challenged the imposition of penalties under Sections 112, 114, and 114AA of the Customs Act, 1962, contending that the violations were attributable solely to the importer and that the appellant lacked mens rea or knowledge of any wrongdoing.The Tribunal reviewed the facts, including the nature of the imported goods (worn clothes of poor quality declared as garments of lower weight), the gross overvaluation (declared value approx. Rs. 55 crores), and the rapid filing of the Bill of Entry within two days of engagement. The Tribunal found these facts indicative of a lack of due diligence and possible connivance by the appellant. The Tribunal further noted the appellant's failure to produce valid authorization and inability to produce the importer or their representatives despite repeated summons. The Tribunal held that these circumstances justified the imposition of penalties under the cited provisions, emphasizing the appellant's responsibility as a CHA to ensure compliance and prevent misdeclaration or fraud.Issue (d): Effect of Corrigendum Dated 16.11.2023The appellant argued that since the corrigendum impleaded the appellant as a noticee one year after the original show cause notice, the limitation period for imposing penalties should run from the date of the corrigendum, and the Tribunal erred in ignoring this fact.The Tribunal considered this submission but found that the corrigendum was issued to include the appellant based on the investigation and evidence of involvement. The Tribunal did not find merit in the appellant's contention that the limitation or applicability of penalties should be adjusted accordingly. The Tribunal held that the appellant's liability and the imposition of penalties were justified based on the entire factual matrix and procedural history.Issue (e): Nature of Bill of Entry as Warehouse/Bond BillThe appellant submitted that the bill of entry involved was not a normal or regular bill but a warehouse/bond bill, and this fact was not considered by the Tribunal, constituting an error apparent on record.The Tribunal reviewed this contention and found that the nature of the bill of entry did not absolve the appellant from the obligation of due diligence and compliance with customs laws. The irregularities and misdeclaration were material irrespective of the bill's classification. The Tribunal held that the appellant's failure to verify the importer's credentials and the authenticity of documents was a breach of statutory duties, regardless of the bill type.Issue (f): Findings of Connivance, Collusion, or AbetmentThe appellant denied any collusion or abetment with the importer, arguing that the absence of direct meetings and lack of authorization negated such findings.The Tribunal analyzed the evidence, including statements of the appellant and his representatives, the absence of valid authorization, the non-existence of the importer at the declared address, and the suspicious nature of the consignment and declarations. The Tribunal found that these factors collectively indicated a lack of bona fide conduct and justified the inference of connivance or at least gross negligence. The Tribunal emphasized that the appellant's failure to produce the importer or representatives despite summons further supported the findings of culpability.3. SIGNIFICANT HOLDINGSThe Tribunal held that:'There is no authorization for receiving the KYC documents by the appellant from his client M/s. D.S. Export Industry irrespective those documents were produced before the concerned authorities and even before this Tribunal. The contents of the documents were found incorrect as the exporter was not found available at the address mentioned in those documents.''The appellant had failed to produce the authorization in favour of the person from whom the documents were received and that appellant nor his G-Card Holders ever met the importer.''The goods declared as garments of lower weight but imported in 40 feet container from Dubai and the CHA had filed Bill of Entry for the clearance of such mis-declared and grossly overvalued goods within two days of being engaged as per their own statement.''The appellant's failure to exercise due diligence and obtain proper authorization, coupled with the suspicious circumstances of the consignment and importer's non-existence at the declared address, justified the imposition of penalty under Section 112(a)(i) of the Customs Act, 1962.''All the additional submissions and documents filed by the appellant have been properly dealt with in the impugned final order.''There is no error apparent on record in the Final Order No. 50302/2025 dated 11.02.2025 as is alleged by the appellant.'The Tribunal concluded by dismissing the application for rectification of mistake, affirming the correctness of the impugned final order and the imposition of penalties on the appellant for failure to exercise due diligence and compliance with customs laws.