TaxTMI 
TaxTMI 
2019 (4) TMI 1096
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....e of Regulation 13(e) and 11(e), 12(j) and 13(n) of CBLR, 2004 (now 11(d), 11(e), 11(j) and 11(n)- CBLR- 2013) 3. The appellant is having their registered office at Tata Centre, Kolkata and are the holder of Custom Broker Agent Licence No. T-19 which was valid till April' 13, 2018 issued by Commissioner of Customs, Kolkata to transact Customs cleared under Rule 9(1) of CHALR, 2004 (referred to as CHALR, 2004) within the jurisdiction of Kolkata Commissionerate. The licence got endorsed under CBLR2013 also after suppression of CHALR, 2004. 4. A specific intelligence was received by the Dte. of Revenue Intelligence, Kolkata Zonal unit (hereinafter referred to as DRI, KZU) to the effect that M/s Tata Steel Ltd, has imported design and drawings for the manufacture of plant and machinery indigenously and also for the imported equipment by resorting to gross misdeclaration of the description and its value. The intelligence further indicated that the value declared for soft copy of design and drawings in CD was insignificant in comparison to the value for designs and drawings in hard copy. The hard copy of the said designs and drawings were cleared by the importer classifying that under ....
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....(98% of the total value) for hard copy of designs and drawings and Euro 4,000 (2% of the total value) for the same designs and drawings in CD-R. Hard copy of the design and drawings, declared value of which was 98% of the total value imported under both the aforesaid two bills of entry were claimed for the classification under Chapter sub Heading No. 49119920 of Schedule-1 to Customs Tariff Act 1975 and cleared without payment of duty under Sr. No. 164 of the Notification No. 21/2002- Cus. dated 1.3.2002. The same designs and drawings in this case were imported by classifying them under Chapter Sub Heading 85238090 of Schedule-1 to Customs Tariff Act, 1975 and duty was paid on the said declared value which is 2% of the only sale approved, as the same was in CD-R form. 5. After investigation, a Show Cause Notice No. DRI F. No. 69/Kol/APP/2009 dated 18.4.2010 was issued to the appellant along with the importer and their Chief Logistics and Managing Director. Based upon this Show Cause notice, the appellant was also issued a show cause notice under the provisions of CHALR for their omission and commission in clearance of the aforesaid design and drawing without payment of appropriate....
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....ajan Vs. T.P.M. Sahir & Ors. - 2003 (8) SCC 498, wherein it is held that test of mandatory or directly context, purport and object of the statute is to be ascertained. Further the Commissioner also relied upon the decision of Ramchandra Keshav Adke (dead) by Lrs and Others Vs. Govind Joti Chavare and Others -1975 1 SCC 559 and Raza Buland Sugar Co. Ltd. Vs. Municipal Board, Rampur - 1975 SC-2190. On the merits of the case, it was held that Inquiry Officer has ignored that Shri Srivastava, Chief Logistic, of the appellant has admitted that there was a mistake and later, submitted by Pay Order NO. 135648 dated 10.10.2009 for Rs. 30,26,406/- towards the payment of duty in respect of Bill of Entry N0. 513626, which indicated that the Custom broker has not properly advised the importer about the payment of duty on the imported drawing and design. It was also found that the importer has not produced the invoice showing the actual value of the imported drawing and design and fabricated another invoice to the customs by paying less amount of duty by splitting the value of imported drawings and design their classification into hard and soft copies. The appellant as CHA was aware of this and....
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....to be completed with mandatory period of 270 days as indicated above. 8. Ld. Sr. Advocate further submits that there is no ground mentioned in the show cause notice issued under the CBLR, 2004 other than what is stated in the show cause notice issued by the DRI which is yet to be adjudicated. Accordingly, it is pre mature to take action against the appellant under the CBLR, as the charges framed against him by the DRI has not been adjudicated. 9. It was impressed upon by ld. Sr. Advocate the proceeding under the CBLR/CHALR as also for nearly six and a half years and in between the CHA/broker licence of the appellant has been extended by the prescribed authority until April 13, 2018 and during the period also there has been no complaint/allegation against the appellant in its performance as customs broker including efficiency. 10. It is further submitted that the revocation of CHA licence under Regulation 21 of the said Regulation and forfeiting its deposit are without condition precedent. The enquiry officer has correctly dropped the charge against the appellant. In pursuance of show cause notice which was illegal invalid untenable and unsustainable. The instant proceedings by w....
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....dvocate also relied upon the decision of Ajay Clearing Enterprise Vs. CC (General) - 2016 (336) ELT 33 (Bom), wherein it is held that: "16. In the order of the Commissioner as well, we do not find any reference being made to the aspect of delay in enquiry or the renewal of the Customs House Agent licence. Thus, the Customs House Agent never met the exporter but was dealing with an intermediary. It is a lapse on his part of not being acquainted with the exporter, but dealing with one M/s. Max Shipping and Baburao Chinta. If failure to exercise due diligence and lack of care are the real charges, then, we do not see how the appellant is held to be actively involved in attempting to smuggle or smuggling of red sanders. Baburao Chinta was definitely involved as such. Mere inaction on the part of the appellant and by not obtaining the credentials of Baburao Chinta, would prove aiding and abetting the smuggling is something which we do not find to be a reasonable and justifiable conclusion. Something more is required to establish and prove aiding, abetting and actively assisting in smuggling of red sanders. Once the appellant was guilty essentially of not contacting and obtaining autho....
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....ity to disagree with the findings in the inquiry report, the rule making authority has specifically provided that the Disciplinary Authority shall record its own reasons for disagreeing with the report of the Inquiry Authority and forward the same to the charged person for his comments. Regulation 22 of the 2004 Regulations does not provide any such power to the Commissioner of Customs and, therefore, in the absence of any power to disagree with the findings in the inquiry report, the Commissioner of Customs would be bound by the findings in the inquiry report. Thirdly, by relying upon a Division Bench judgment of this Court in the case of Rajan Virji & Company (supra), it is submitted that since it is mandatory for the Commissioner under Regulation 22(6) to furnish a copy of the inquiry report to the CHA, even if the report is in favour of the CHA, it has to be presumed that the Commissioner is bound by the report and has no power or authority to disagree with the report of the Inquiry Authority." He further submitted that in case of Unison Clearing case (supra), Hon'ble Tribunal has held that the time period prescribed is only directory. In this case, due to changes of Inquiry O....
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....pellant and, therefore, it was incumbent upon to bring the entire fact about the import of drawing and design to the Customs Officer while clearing the consignment on CHA. The fact that the major portion of the value of the drawing and design has been shifted to hard copy thereof which was cleared without payment of duty under Chapter Heading 49.11 along with exemption notification was a ploy to reduce the assessable value of drawing and design imported in the software form. As CHA, it was incumbent upon the appellant to bring the entire fact before the assessing officer so that the assessment could have been done in an appropriate manner. This clearly proves that as a CHA the appellant has not been honest enough to bring the entire fact before the assessing officer. Further, the appellant was also aware of the fact that the payment of the said drawing and design has been made to the overseas party through banking channel and for which the separate invoice was raised to M/s Tata Steel Ltd. This invoice was not procured by the appellant and produced to the Customs authority. Since the appellant and the importer belong to same group of companies, it cannot be said that the appellant ....