TaxTMI 
TaxTMI 
2020 (11) TMI 592
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.... suspension to all concerned; a hearing as per Regulation 19(2) of CBLR, 2013 was granted to the appellants on 17.10.17; appellants requested to postpone the same stating that authorized legal representative would be out of station. Learned Commissioner of Customs (Airport & Administration), Kolkata, issued Order No. KOL/CUS /AIRPORT/ADMN /23 /2017dated 25.10.17, continuing the suspension and initiating proceeding under Regulation 20 of CBLR,2013; appellants prayed for fixing hearing on 10.11.17 but commissioner ordered that it could be within 15 days i.e. on or before 25.10.17, in terms of Regulation 19(2) of CBLR, 2013; the Order dated 25.10.17 was passed ex parte. 2. Being aggrieved by the said Order-in-Original, the appellant preferred an Appeal before this Bench, who, vide Final order No 75073/2019 dated 07.01.2019, set aside the OIO and remanded the matter back to the Commissioner with a direction to allow cross examination of Shri Abid Ali and Shri Maswood Ahmed. In de novo proceedings a Show Cause Notice, dated 22.12.2017, was issued seeking continuation of the suspension, revocation of licence and forfeiture of securi....
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....hich address the notice was sent; • Ld. Commissioner had neither dealt with the provisions of Regulation 20(4) of CBLR, 2013; • the finding of the Ld. Commissioner that the appellants had failed to verify the antecedent of his client at the declared address, is absolutely erroneous in as much as the importer is very much available and had joined the investigation before the DRI as well as before the Inquiry Officer; as it is not the case that the importer is not available, allegation of violation of Regulation 11(n) of CBLR, 2013 is not sustained; • allegation of violation of Regulation 11(a) of CBLR, 2013 is also not maintainable as the importer approved Bill of Entry and the same amounts to grant of authorization in favour of the CB, as held by the Hon'ble Tribunal in a number of cases; • in the absence of any specific charge of failure of supervision of the employee by the CB, there cannot be any violation of Regulation 17(9) of CBLR, 2013 • Commissioner's reliance on Hon'ble Supreme Court's decision in the case of K.M. Gantra & Co is not correct, as there is nothing on record to show that t....
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....eventive), Jaipur: 2019 (370) ELT 1074 (Tri.-Del.) • Geeta Clearing & Forwarding Agencies P. Ltd.: 2019 (370) ELT 1030 (Tri.-Mum.) 4. Learned authorised representative for the department reiterates the findings of the OIO and submits that the CB has dealt with Shri Abid Ali even when they were aware that the IEC was not in his name. 5. We have heard both sides and perused the records of the case. The impugned order finds that the CB has violated the provisions of Regulation 11(n) of CBLR, 2013 inasmuch as he has failed to verify the antecedent and functioning of the client by using reliable and independent sources; it is not correct on the part of the CB to say that since Shri Abid Ali was present during the investigation and as no alert was in place against any traders, they had no reason to verify the antecedents and that Shri Maswood Ahmed himself stated that the real importer was one Shri Bedi of New Delhi and that he has not authorised anyone to import on his behalf. On the other hand, we find that the CB submits that the department themselves could not find out any fault while clearing the consignments imported by M/s. MA Traders and as su....
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.... should have himself allowed the cross-examination as directed by this Bench during the personal hearing. Moreover, we find that Commissioner has given cryptic findings on the alleged violation of Regulation 11 (n) of CBLR, 2013 by the Custom Broker. As submitted by the appellants, he has not given any reasoning or findings of his own. To this extent, learned Commissioner has again violated the principles of natural justice. 8. Coming to the alleged violation of Regulation 11(n) of the Customs Broker Regulations, 2013, we find that the said Regulation stipulates that: - "A 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." We find that though the Customs Broker has been maintaining that as the importer Shri Abid Ali was always present during the course of investigation and presented himself before the authorities a need for independent verification had not arisen. We find that such an argument is not acceptable. In the instant case, the IEC holder was one Shri Maswood Ahmed and ....
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.... offence committed. In the present case, we notice that the punishment of revocation is not justifiable even if it is to be admitted that physical verification of the importer's premises could have avoided the filing of the bill of entry by the appellant. Even in such a situation, the violation in respect of the cargo viz. the non-declaration of the RSP on the auto parts, a debatable point of interpretation, cannot be held against the appellant to result in the revocation of their license. Here, it is to be noted that the bill of entry was filed after the detention of the goods for inquiry by the DRI Officers and request for physical verification of the cargo before assessment has been made in the form of first check bill of entry. We find that the impugned order passed on disagreement with the inquiry report has not brought out clear sustainable ground for such extreme action of revocation of license. Violation of CBLR, 2013 has not been brought out as all the points have been elaborately discussed in the inquiry report and no sustainable ground for differing with the same could be made out. 11. Similarly, in the case of R.S.R. Forwarders Vs CC, New Delhi 2018(364) ELT 54....
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....deposit as well as penalty of Rs. 50,000/- imposed by the adjudicating authority on Sh. Sadanand Chaudhary. 13. We further find that Tribunal in the case of Customs Appeal No. 21036 of 2019 Sri Manjunatha Cargo Pvt Ltd Vs CC, Bangalore, held that 6.2. Further we find that in the impugned order, the Commissioner has held that the appellant has not directly interacted with the IEC holders and is guilty of violation of Regulation 17(d) of CBLR 2013. This finding is factually incorrect because in the statements of Mr. Mohammad Yusuf Siddique, G Card holder and Power of Attorney of the appellant at Mumbai, he has stated in his statement dt. 25/05/2017 that he had interacted with the IEC holders. Further we find that as per the Commissioner, the appellant has not brought to the knowledge of the Department that IEC holders have lent their IECs to other persons. We find that there is no evidence on record brought by the Department to show that the appellant had knowledge regarding the lending of IEC. Further we find that the lending of IEC is not an offence under the Customs Act, 1962 as held in various decisions cited supra. As f....