TaxTMI 
TaxTMI 
2016 (12) TMI 376
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Customs Broker under Regulation 19(1) of CBLR,2013 (erstwhile Regulation 20(2) of the CHALR, 2004). The brief facts of the case as informed by DRI are as follows: The officers of DRI examined the imported consignment under Bill of Entry No. 2045723 dt. 6.5.2013 loaded in container No. HDMU 6653869 of the goods namely Embroidery Machine Needles imported from China. It was found that firstly the said goods attracted the anti dumping duty which was attempted to be evaded and also the quantity of needles was misdeclared as 20,000 pieces instead 1,00,00,000/- of pieces. Investigation revealed that the importer has submitted manipulated invoices to the Customs for filing the Bill of Entry which was prepared by one of the employees of the importer. In the statement of the importer recorded under Section 108 of the Customs Act, 1992 on 22.5.2013 has informed that he had agreed to pay Rs. 4lakhs over and above the agency charges for customs clearance of the said consignment without the payment of anti dumping duty on the needles to Mr. P.P. Singh operating in the name of M/s. S.N.M Agency under Customs Broker No. 11/1481. Apart from the said misdeclaration, the goods imported are also f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of CBLR, 2013 (erstwhile Regulation 20(2) of CHALR, 2004. Thereafter the inquiry proceedings was initiated against the appellant. The Articles of charge were framed which are briefly given below: Article of Charge-I This article of charge that the appellant is liable for violation of Regulation 11 (a) of CBLR, 2013 (erstwhile Regulation 13(a) of CHALR 2004) in as much as the appellant has been handed over the import document by other Customs Broker, Shri P.P. Singh. Therefore they have not obtained the proper letter of authority from the importer. The signature of the importer on the authority letter was found to be different from the actual signature verified by the Bank therefore no authority letter was obtained. Article of Charge-Il In this article of charge was framed for violation of regulation 11(B) of CBLR, 2013 inasmuch as the appellant has not personally or through an employee carried out the job of clearance in the present case. Shri Manish Singh employee of the appellant has filed the bill of entry but it was told to Shri B.P. Singh that he will not go to the docks for clearance it will be managed by Shri P.P. Singh through the officer therefore the appellant. has v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry officer it appears that the Customs Broker has violated Regulation 11 (i) of CBLR, 2013. Article of Charge-Vll In this article of charge it was proposed that the appellant has violated the Regulation 11 (m) of CBLR,2013. According to which the Customs House Agent is under obligation to discharge his duties with utmost speed and efficiency and without avoidable delay. It was alleged that since the appellant has attempted to facilitate fraudulent imports and evasion of a huge sum of anti dumping duty for monetary consideration. They have not discharged their duty which efficiency, therefore the Regulation 11(m) appears to have violated. Article of Charge-Vlll Under this article of charge Regulation 11 (n) was alleged to have violated as per this Regulation, the Customs Broker shall verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. Shri Manish Singh in his statement dt, 12.6.2013 recorded under Section 108 has admitted that he has not verified by the documents which was handed over to him by Shri P.P. Singh; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... impugned order whereby he has ordered for revocation of the CHA licence and forfeiture of the security deposit. The Ld. Commissioner held that all the 8 charges have been established and proved. The Ld. Commissioner also observed that the appellants licence in the past also revoked and the same was upheld by the Tribunal, therefore the appellant is an habitual offender. Being aggrieved by the Order-in-Original. The appellant filed this appeal. 2. Shri R. K. Pardesi, the Ld. Counsel for the appellant submits that the appellant had no role for the misdeclaration of description of goods and in fact they had acted in a diligent manner informing the department about the alleged mis-declaration and they had withdrawn their services on behalf of the importer. Hence by informing the department about alleged misdeclaration they had withdrawn their services. Therefore they acted in a bona fide manner once they have withdrawn no charge can be established against the appellant. The Ld. Commissioner has rejected the authority letter and indemnity obtained by the appellant on the presumption that it is after thought it is completely erroneous. He submits that once the authorization was obtaine....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of the goods. As per the statements of various persons it is clear that M/s. SNM Agency who assigned the work for clearance of the imported consignment order was in hand and gloves with the appellant and the appellant was well aware about the attempt of evasion of anti dumping duty and the misdeclaration of the quantity and value of the goods. It is only when the customs authority has pointed out the discrepancy, they immediately withdrawn themselves from the job of the clearance of the goods on behalf of the appellant. It is proved that the authority letter was fake as the signature from the authority letter not matching with the actual signature certified by the Bank. He submits that once it is proved that the appellant customs Broker is very well aware about the wrong doing by the importer then all the regulations which the Ld. Commissioner has held to be violated stand established. Therefore the Customs Broker has no legal and moral right to carry out the customs clearance work. He placed reliance on the decision of this Tribunal in the case of International Express Co. Vs. Commissioner of Cus. (General), Mumbai 2014 (300) E.L.T. 262 (Trio-Mumbai). 4. We have carefully cons....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... confirmed the number of pieces from the importer and learnt that the same was 1,00,000,00 pieces and I conveyed the same to o Manish Singh. The importer also conveyed that they would either reexport the needles and take the other items for clearance in home consumption or put the entire consignment in Bond. I conveyed the same to Manish Singh of M/s. Vinayak Shipping, who replied that he would not clear this consignment as the party has not come clean and misdeclared the needles. 1 further say that on 10.05.2013 Manish Sing handed over a letter addressed to Assistant Commissioner of Customs, informing that they were not acting as CHA for IAA the said consignment, which was submitted to the said officer and acknowledgement received was handed over to Manish Singh on next day. As the consignment could not be cleared I returned the amount of Rs. 2,30,000/- in two installments i.e. Rs. 1,30,000/- in first time and Rs. 1,00,000/- in the second time and I paid the said two installment in or around 15.05.2013. Statement qf Shri B P Singh dated 21-5-2013 On being asked , I wish to state, that, on 6th May 2013request of Shri Manish Singh, employee of M/s Vinayak Shipping Services, who is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingh. I told him that I will file the bill of entry but physically I will not go to the docks for the clearance, to which he responded in the positive. I asked whether he knew the IEC, holder personally, to which he replied in the positive. asked for all the documents like authority letter, PAN. card, ration card, IT Return and Sales Tax Certificate of the IEC holder, which was given to me by P.P. Singh. On being asked that the description on the invoice is "500 PCS EMBROIDERYILACHEE NEEDLE", the number of cartons shown in the invoice is 200, the unit given in the invoice is Box and the total quantity shown is 20000, does not match, I say that I did not verify the same as did not, scrutinise it. On 3.5.2013 P.P.Singh sent one of his staff to my office and took my sign and stamp of M/s. Vinayak Shipping services on the back side of the original hill of lading, arise took the original bill of lading which was to be submitted Hyundai Merchant Marine Pvt. Ltd., Andheri. The original Delivery Order in the name of M/S. Vinayak Shipping Services was received by P.P. Singh which was informed by him (PP Singh) P.P. Singh conveyed to me the IGM No. of the aforesaid import consignment throu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....clearance in home consumption or put the entire consignment in Bond and as per the requirement the party would clear the consignment in piecemeal basis. At this point I told P P Singh that I do not want to clear this consignment using my CHA Licence as the party has not come clean and mis declared the needles and told him to hand over the import the responsibilities as a CHA from this import consignment. On 10.5.2013 1 gave a letter to P P Singh issued by M/S. Vinayak Shipping Services addressed to Assistant Commissioner, Customs, CFS Mulund, Mumbai informing him that we are not acting as CI-IA for Ws. Jai Ambey Impex for the said consignment since the importer was not ready to adhere to the advice for levy of antidumping duty on needles and told him to hand over the said letter to AC Customs Mulund. On 11.5.2013 he (P P Singh) brought the acknowledged copy of the said letter. Statement of Shri Masnish B. Singh dated 12-6-2013 Further to my earlier statement dated 23.5.2013 I say that I have not verified the import documents bearing bill of lading no. HDMUNXAY 3011863 dated 18.3.2013, invoice no. YX20130395 dt 16.3.13 issued by M/S. Shenzhen Pulaisdun Trading Co. Ltd., China in f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Singh sent one of his staff to my office and took my sign and stamp' of M/s. Vinayak Shipping Service on the back side of the original bill of lading, and took the original bill of lading which was to be submitted to Hyundai Merchant Marine Pvt. Ltd" Andheri. The original Delivery Order In the name of M/s. Vinayak Shipping Services received by P P Singh which was informed by him (PP Singh). P P Singh conveyed to me the IGM No. of the was aforesaid import consignment through SMS. The IGM No. is 2289750 dated 1.4.2013. on 3.5.2013 1filed bill of entry for the above import consignment online, which failed as an error was reflected on the system which showed a wrong Port Code as well as the system was not accepting the declaration of needles in boxes and therefore on. the same day (3 5 2013), I told P P Singh telephonically that the document could not be filed today due to the above two reasons P. P. Singh informed me that he will tell me the declaration of needles In pieces after confirming from the party and he told me to file it on the next working day, i.e. on 2013. I took out a print out of this import check list and gave it P P Singh at his residence on 4.5.13 and I also kep....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... It appears that once the statement dt. 23.5.213 was recorded there was no necessity to take a repeated statement. Therefore the statement dt. 12.6.2013 does not create a new picture of the entire fact particularly in the light of retraction by Shri Manish Singh vide Affidavit dt. 13.6.2013 As regard the charges of violation of various regulations alleged and confirmed by the lower authority, we find that the appellant before accepting the job of clearance of the goods has taken authority letter from the importer. From authority letter and the verification of the signature by the bank, we do not see any difference in the signature. Moreover whether the signature is correct or not if there is any doubt the same cannot be established without getting it certified from the forensic expert which department has failed to do. Moreover there are other documents like certificate of registration from Maharashtra Sales Tax Department in favour of the importer 'M/s. Jai Ambey Impex' also submitted therefore the identity of the importer is not under doubt. The entire objective of taking authority letter and KYC is for the purpose to establish the identity of the importer. In the presen....