TaxTMI 
TaxTMI 
2020 (12) TMI 710
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....ohalla Koth Kalan, Shikarpur, Dist. Bulandshehar, U.P., the appellant is a qualified B. Tech (IT) and also MBA. He joined M/s S. Satyam Aviation Pvt. Ltd. in November, 2014 as Director. The company is owned and controlled by his uncle Shri Mukesh Kumar Saini and is engaged in the business of freight forwarding. After passing of the Customs Broker exam in 2016, he was persuaded by Shri Raj Singh Saini and Mukesh Kumar Saini to get the "Customs Broker license‟ in the name of the company - M/s S. Satyam Aviations Pvt. Ltd. Accordingly, he agreed and an application was made and CB License No. R-71/DEL/CUS/2016 was issued, valid till 5 September, 2026. That during his tenure with the said company, the appellant neither received salary and only received remuneration of Rs. 2000/- per container in cash for filing of the documents with the customs authority, doing the clearance work for which he was authorized by the Board Resolution. The said company had three bank accounts out of which two accounts were operated by Shri Mukesh Kumar Saini and one account was operated by this appellant for clearance purpose only. The payments from the client were directly received in the account of ....
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....llant, before the SHO - Police Station, Paharganj, alleging that this appellant have been falsely representing himself as Director of the said company, (after registration) and filed about 700 shipping bills for various exporters by using the F-Card in the name of the company, and have received the clearance charges, which he has siphoned from the separate bank account in the name of the said company. It was further alleged that F-Card in the name of this appellant is the property of the company. 7. Thereafter, the said Shri Mukesh Kumar Saini to cover up his nefarious activities and particularly to avoid the filing of original copy of resignation letter, sent a notice dated 3 December, 2018 through their Counsel to the ACC (Policy), in the form of reminder, again reiterating the request to the department that the CB License No. R-71/2016 should be cancelled and F-Card No. 145/2016 should be blocked with immediate effect, and the FDR furnished at the time of grant of CB license may be released to the Managing Director of M/s S. Satyam Aviations Pvt. Ltd. 8. That on 4 December, 2018, the appellant received a phone call from the office of the Commissioner of Customs (Import & Gener....
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.... he is authorized signatory to sign all necessary documents in respect of clearing work. He has not received any verbal communication of his alleged removal from the said company. On being shown the copy of resignation letter dated 22 August, 2018, purportedly signed by the appellant, the appellant vehemently denied that the said resignation letter is neither written by him nor signed, and he further stated that he has come to know about the alleged resignation only on 4 December, 2018. The appellant further informed that he was not aware of any Board Resolution dated 22 August, 2018, accepting his alleged resignation. The appellant also denied any knowledge about admitting as Directors of Shri Sanket Mahesh Patil on 18 June, 2018 and Shri Harshit Saini on 16 September, 2018 respectively. He further stated that he never met the two persons. He also expressed surprise as to how a stranger namely- Shri Sanket Mahesh Patil could be inducted as a Director on 18 June, 2018, without his knowledge, as Shri Mukesh Kumar Saini and Shri Atul Kale (other Director) and he were the Directors of the said company till 22 August, 2018. Thus, this shows the act of forgery on the part of Shri Mukesh....
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....as imposed under the Regulation 18. It was further directed that the said company immediately surrender the CB license along with all F, G & H Cards issued thereunder. It was further observed that the revocation of license is independent and without prejudice. This appellant was neither a co-noticee nor party to these proceedings. 11. Meanwhile the appellant had filed request letter dated 12 March, 2019 for issue of fresh CB license stating his eligibility and enclosing necessary documents including license fee of Rs. 50,000/- etc. as proprietor of "S.S. Logistics‟. In response thereto, this appellant received communication dated 27 September, 2019 from the ACC (Policy), informing that Show Cause Notice No. 22/MK/Policy/2019 dated 6 September, 2019 has been issued on him under Regulation 14 and 18 read with Regulation 17 of CBLR, 2018 alleging mis-conduct and non-compliance of the regulations of CBLR, and in view of order in original on the CB companies, and as such his request for issue of CB license cannot be considered, until the proceedings are completed. The said show cause notice dated 6.9.2019 required the appellant to show cause as to why he be held not responsible f....
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....port passed in the case of said company were supplied to the appellant for making an effective representation. The appellant vide letter dated 28 September, 2019 requested for copy of these documents from the department. The department vide letter dated 4 October, 2019 supplied the documents. Further the appellant was informed that the hearing was fixed before the enquiry officer on 4 October, 2019 at 11.00 AM through notice dated 19 September, 2019. 13. That the appellant due to difficulty of his authorized representative requested for adjournment and further date was fixed on 8 November, 2019. The appellant filed replies/submissions to the show cause notice dated 6 September, 2019 disputing the allegations against him in the show cause notice, inter alia stated that the show cause notice is based on the earlier enquiry report in the case of the said CB company wherein the same officer - Shri Rex Hungyo, AC, who is in the enquiry officer in the instant proceedings, thus there is violation of the provisions of natural justice. It was also submitted that the show cause notice is time barred as the alleged offence report which was in the form of letter dated 3 December, 2018, submit....
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....ly time barred. That the enquiry officer have not even examined the original alleged letter of resignation dated 22 August, 2018, rendering the enquiry report not reliable and fit to be rejected. 16. That vide the impugned order in original dated 6 February, 2020, the learned Commissioner accepting the enquiry report and rejecting the contentions of the appellant, have been pleased to impose penalty of Rs. 50,000/- on the appellant under Regulation 18 of CBLR, 2018 and further directed to surrender the F-Card No. 145/2016 issued to him. 17. Being aggrieved, the appellant is in appeal before this Tribunal inter alia on the grounds that the impugned order is non-speaking and passed in a mechanical manner, without application of mind. The alleged original resignation letter dated 20 August, 2018 has neither been examined by the enquiry officer nor by the learned Commissioner, although it goes to the root of the matter. Since this appellant have disputed the said resignation letter, never made and signed by him and have alleged fraud against the other Directors. Further there is no examination report of an expert with regard to alleged resignation letter of this appellant. It is furt....
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....the resignation from the directorship of this appellant was filed only on 19 November, 2018, i.e. after about three months and during all this time why they permitted the appellant F-Card holder and Director to use the Customs Broker license of the company. I further find that there is no explanation obtained by the court below as to the reason for failure on the part of the other Directors to intimate the Custom department of change in the Constitution of the Directors of the company holding CB license. Further the contentions of this appellant as to the forgery and fraud being committed by the other Directors, particularly Shri Mukesh Kumar Saini have not been found to be untrue but have been summarily rejected without any reason recorded. As the Customs Broker account of the custom broking company can be deactivated itself on ICEGATE, still the same was not done by the other alleging Directors till 18 December, 2018, for which there is no explanation. The appellant gave a cogent explanation in the very first instance when his statement was recorded by the Supdt. on 14 December, 2018 and stated that one Shri Raj Singh Saini brother of the other Director Shri Mukesh Kumar Saini ha....