TaxTMI 
TaxTMI 
2022 (5) TMI 764
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....se notice was adjudicated vide Orde-In-Original dated 12.10.2021 by the adjudicating authority. Being aggrieved by the order, the appellant is before us in appeal. 02. Shri Shri Uday Madhukar Joshi, learned Advocate appearing on behalf of appellant submits that Appellant has not violated any provisions of Customs Broker Licensing Regulation, 2018. The Shortage in the cargo of silver bars has occurred before arriving the container to the ICD, Khodiyar. He referred to the police report against the theft of the silver bars and also the report of the CONCOR who is custodian of the goods. He submits that this proceeding clearly shows that the theft of silver bars had taken place before arriving the container to the ICD, Khodiyar, therefore, the appellant cannot be made responsible for any wrong deed happened behind their back. 2.1 He also submits that the role of the Customs Broker starts only after arrival of the cargo, Appellant had filed advance Bill of Entry No. 968652 on 17.01.2019 for warehousing being a Customs Broker of State Trading Corporation correctly as per the documents such as Invoice, IGM, etc.. The Cargo had arrived at Nhava Sheva Port and subsequently proceeded t....
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....t been passed by the adjudicating authority within the time limit prescribed under the aforesaid regulation which are mandatory in nature, the entire proceedings are time barred. He placed reliance on the following Judgments:- • Impexnet Logistics Vs. Commissioner of Custom (General) - 2016(338) ELT 347 (Del.) • Overseas Cargo Services Vs. Commissioner of Custom (General) - 2016(340)ELT 119(Del.) • SK Acharya CHA Vs. Commissioner of Customs (Airport &Admn.), Kolkata- 2018 (363) ELT 504 (Tri. -Kol.) • Sabin Logistics Pvt. Ltd. Vs. Commissioner of Customs, Chennai -VIII- 2019(367) ELT 200 (Mad.) 2.6 He further submits that the Adjudicating authority has not appreciated that the present matter did not relate to mis-declaration of goods, undervaluation of goods, misclassification of goods, evasion of duty, violation of any exim policy conditions or Customs Act , and not even suppression of any fact. In the present matter importer had paid duty even on goods short found too. In absence of any such allegation, in various cases this tribunal consistently held that revocation/ cancellation of license being an ultimate penalties resulti....
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....instant case is that shipping line had informed CONCOR about description of goods as silver bars and complied customs notification, circular and circular issued by CONCOR. Further they submitted that CONCOR both as "transporter" as well as "custodian" was well aware from the gateway port i.e Nhava Sheva itself that they were carrying silver bars "high value cargo" in container no. CAIU 6840387 as transhipment of container from gateway port to ICD, Khodiyar was done by CONCOR and CONCOR in this case acted as custodian at ICD, Khodiyar. It was sole responsibility of CONCOR as transporter and custodian to comply with the provisions of Customs Notifications and Circular issued in that behalf. Appellant submitted that CONCOR circular did not mandate each addressee to inform CONCOR separately. Further appellant submitted that during transshipment of container from gateway port to ICD, Khodiyar and subsequent placement of container at demarcated place appellant had no role to play, they were not authorized to do so by customs authority. Further appellant submitted that they had no access of container at the time of arrival. Appellant also submitted that they were appointed by Customs auth....
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....jor port, to any other customs port or customs airport; Notification 31/98-Cus (N.T) dated. 02.06.1998 "Goods Imported (Condition of Transhipment), (First Amendment) Regulations, 1998" and para 4 & 5 of Customs Circular No. 46/2005 dated. 24.11.2005 "Automation of movement of containerize cargo from Gateway Ports to hinterland ports - SMTP - Regarding" submitted at page no. 240 & 241 of paper book volume 1, which read as under: 4. The transhipment permit information will be sent to the carrier, the transporter undertaking the transhipment, custodian of the gateway port, and the ICES system at the destination ICD. Transhipment permit can also be printed by the carrier in his office or in the custom 5. The transhipment permit transmitted to the recipient port/ ICD/ CFS will automatically be converted into an IGM and the Shipping Lines will not be required to file any fresh IGM in respect of such containers. we find that there are specific responsibilities were cast on "declarant that is Shipping Line", "Transporter and Custodian"i.e"CONCOR" in this case and procedure to be followed by declarant, transporter and custodian is clearly laid down by CBIC f....
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.... "Q9. Please read Regulation 3 (b) of Notification No. 61/95-Cus (N.T) dated. 28.09.1995 and Regulation 2 (c) of Notification No. 31/98-Cus (N.T) dated. 02.06.1998. As per these regulations are the goods imported required to be mentioned in transhipment documents like IGM, Rail Summery etc.? Ans. The SMTP (Sub-Manifest Transhipment) is being filed by the Shipping line with Customs and this SMTP details are shared by the shipping line through a forwarding note to CONCOR while the shipping line gives booking to CONCOR..." "Q10. In this documents handed over to you just now, both gate and local IGM for the container in issue, wherein imported goods have been mentioned as Silver Bars in the description column do you agree to this? Ans. I can very well see from the documents given to me just now that the table showing B/L status column no. 3 the goods description column, it is showing 21 wooden pallets as written STC. 657 pieces silver bars net weight 20243.8580 kgs reference invoice no. 190107000043." "Q11. In those documents handed over to you just now, there is forwarding note of CONCOR dated. 28.01.2019 it is categorically mentioned on page 2, ....
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....nt to ICD, Khodiyar and for that preparation of Rail Summary till arrival of the container at ICD, Khodiyar was responsibility of CONCOR as transporter.It was not appellant's responsibility and appellant as a Customs Broker had no role to play in terms of Customs Act and CBLR 2018 and he was not authorized to do so by Customs authorities. We also observed that CONCOR circulars did not mandate each addressee to inform CONCOR separately. 4.11 Customs brokers, under Regulation 10 (a) of the CBLR 2018 are under obligation to obtain an authorization from an importer and act accordingly. In the present case, such authorization was issued by importer M/s. State Trading Corporation of India Ltd, vide authorization letter dated. 17.01.2019 wherein it was categorically stated that "the appointment of CHA under this authority was specific and limited to process its documents as provided by it for customs clearance with customs authority as licensed customs house agent only". The appointment of the appellant was nothing beyond that and further we find that the appellant was not authorized by importer / shipping line / carrier/ notified party to give any advance intimation to customs departm....
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.... in the instant case are that, CONCOR as transporter of container from gateway port to ICD and as a custodian at ICD, Khodiyar was well aware that they were carrying Silver bars in container no. CAIU 6840387. Appellant further submitted that it was the sole responsibility of CONCOR as custodian at ICD, Khodiyar to check IGM and Transhipment documents before allowing unloading of container from railway rack, and all such documents reflected description of goods as Silver Bars and it was sole responsibility of CONCOR to unload the container from railway rack and after unloading place the container at its designated place according to the nature of cargo immediately on arrival at ICD in terms of Handling of Cargo in Customs Area Regulations, 2009. Appellant submitted that due to gross negligence of CONCOR container remained dormant for two long days from 02.02.2019 to 04.02.2019 at its first location instead of placing it at its demarcated area. Further appellant submitted that at the time of arrival of train and unloading of container from railway rack and also for placement of the said container at demarcated place, appellant had no role to play. It was not authorized to do so by cu....
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....he customs area or be unloaded therein without the import report or the import manifest having been filed with the Deputy Commissioner or Assistant Commissioner of Customs; (2) The Customs Cargo Service provider approved for custody of imported or export goods and for handling of such goods shall not lease, gift, sell or sublet or in any other manner transfer any of the premises in a customs area; or sub contract or outsource functions permitted or required to be carried out by him in terms of these regulations to any other person, without the written permission of the Commissioner of Customs. and Regulation 2 (aa) of Notification No. 24/2017-Cus (N.T) dated. 31.03.2017 reads as under:- 2. In the Handling of Cargo in Customs Areas Regulations, 2009, in regulation 6, in sub-regulation (1), after clause (a), following clause shall be inserted, namely:- "(aa) Provide information regarding arrival of the imported goods to the Deputy Commissioner or Assistant Commissioner of Customs immediately on arrival of said goods in the customs area and also information about their departure after the clearance thereof ". 4.19 Considering the aforesaid provisions a....
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....ses? Ans. "As per HCCAR regulation 2009, CONCOR has appointed various service providers for operation of the terminal. For handling of containers and cargo, CONCOR had appointed handling contractors for unloading/loading internal movements of containers in the yard, stuffing/destuffing in warehouses. Placement for examination / destuffing, bonding etc. and other ancillary services" "Q27. By virtue of provision of section 6(1) (d) of HCCAR regulations 2009, is it the responsibility of custodian to place a container as per the nature of goods in demarcated area? Ans. "Yes, separate area is already demarcated and accordingly the containers are placed". "Q.28 Who did the movement of container no. CAIU 6840387 from its first location to demarcated place on 04.02.20219? did CONCOR do it itself or was it done by CONCOR appointed agencies? Ans. "I have no idea who transported the container but the transportation and handling of container are being done by CONCOR appointed handling contractors". 4.23 Further, we find in statement of Mr. Nithin RajappenMetetil, Deputy Manager, CONCOR, ICD-Khodiyar recorded before Adalaj Police Station on 11.02.....
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....anager, CONCOR, ICD-Khodiyar as well as offence report of Deputy Commissioner of Customs and CONCOR's public tariff it is clear without any doubt that it was sole responsibility of CONCOR as a custodian at ICD, Khodiyar to unload the container from train and further placement of that container at demarcated area according to the nature of goods. It was not appellant's responsibility and appellant as a Customs Broker had no role to play in terms of Handling of Cargo in Customs Area Regulations, 2009 and CBLR 2018. Appellant was not authorized to do so by Customs authorities. 4.26 It appears that while deciding the matter Commissioner of Customs has not taken into consideration Handling of Cargo in Customs Area Regulations, 2009wherein specific responsibilities were cast on CONCOR as a custodian as well as documentary evidence available on record. In our view considering the provisions and the documentary evidence on record, negligence of CONCOR as a custodian was attributed to customs broker while adjudicating the matter. 4.27 In view of our above findings appellant being Customs Broker cannot be held responsible in any manner under Regulation 10 (m) of CBLR 2018 with regard t....
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....1.02.2019, Deposition of Mr. Peter George Parker, from Sea Trade Shipping, Ahmedabad who was agent for Regional Container Lines (RCL Agencies (India) Pvt. Ltd) recorded by inquiry officer during cross examination on 05.03.2021, Investigation Report of Police Inspector, Adalaj Police station dated. 13.07.2019, Investigation Report of Chief Manager, CONCOR, ICD, Khodiyar dated. 01.07.2019 and CONCOR's weighment receipt No.1155 dated 04.02.2019. 4.30 We find that vide Customs Public Notice No. 36/2009 and Trade Facility Note No. 02/2012 specific procedure and related responsibility was cast on customs, custodian and shipping line for verification of seal number and gross weight at the time of arrival of import container at ICD by Commissioner of Customs, Ahmedabad who is the respondent in this case. 4.31 We have carefully gone through the documentary evidence available on record which was relied upon by appellant in its defense and we find that vide para 4.2 of Public Notice No. 36/2009 ,procedure has been prescribed for custodian by Commissioner of Customs, Ahmedabad under which ICD, Khodiyar also falls:- 4.2 The HPCSL shall give, at least 24 hours in advance, an intim....
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....being done through CONCOR appointed surveyors who were given the task of recoding details and reporting to CONCOR and subsequent updation in system". "Q.24 Did the surveyor provide survey report to CONCOR regarding aforesaid container which arrived vide train no. BKHTX22136 at ICD-Khodiyar on 02.02.2019 and mentioned regarding any discrepancy regarding seal no. and weight of aforesaid container? Ans. "The surveyor did report the container description but recorded the wrong seal no. which had been duly recorded during the investigation process with the Adalaj Police Station and our internal investigation reports". "Q.25 Did any of the officers of CONCOR verify seal on container no. CAIU 6840387 when the same arrived vide train no. BKHTX22136 at ICD-Khodiyar? Ans. "CONCOR appointed surveyor who work for CONCOR in preparing and submitting reports. Seals of container no. CAIU 6840387 are not physically verified by CONCOR officials and the job is assigned to the surveyors to report any discrepancy." We find that in para 4.5.d of offence report of Deputy Commissioner of Customs, ICD, Khodiyar dated 23.10.2019 he also recorded that "The surv....
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....rrived at ICD at that time not only the weight was less than what was mentioned in the documents but seal number was also different. Further they concluded that theft had not taken place at ICD, Khodiyar which is in the limits of Adalaj Police Station and further CONCOR had also conducted investigation and reported that the theft had not happened in the ICD, Khodiyar premises. 4.38 We find from the above facts on the record that it was negligence on part of CONCOR and its appointed agency that they did not verify seal on container no. CAIU 6840387 and weight of the container was recorded less than it was mentioned in their own documents when it arrived at ICD, Khodiyar and further while moving the container from its first location they came to know about discrepancy in seal number and weight which they did not inform customs authority nor to the appellant. 4.39 Further, we find that para 2 of Trade Facility Note No. 02/2012-CUS dated 30.11.2012 of Ahmedabad Customs, reads as under:- Sl. No. Work Profile Compliance Required Remarks 2. Verification of Goods / Container on arrival at ICD / ACC / CFS by Airlines / Shipping lines Airlines / Shipping lines or t....
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....rom custodian. 4.43 We find no merit in learned Commissioner's finding that appellant's representative had not verified the seal before it was cut. Since appellant's responsibility as customs broker was ceased once the bill of entry was given out of charge, then presence of his representative at the time of cutting the seal and its verification have no relevance nor his admission that he has not verified seal has any relevance. Merely presence of his representative after completion of his work responsibly cannot hold appellant responsible for such harsh action of revocation of licence. It appears that while deciding the matter Commissioner of Customs has not taken into consideration such crucial facts which were on record and discussed herein before. 4.44 In view of our above findings appellant being Customs Broker cannot be held responsible in any manner under Regulation 10 (e) of CBLR 2018. 4.45 We find that appellant raised the issue that entire proceeding being time barred in terms of provisions of Regulation 17 (5), 17 (6) and 17 (7) of CBLR 2018. In that context they placed reliance on documentary evidence on record, Para 3 (iv), (v) & (vi) of Circular No.157/13/2021....
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....ustain. 05. In view of our above discussion and finding, we set aside the impugned order and allow the appeal. (Pronounced in the open court on 11.04.2021 ) ============= Document 1 2/7/2019 SEA IGM ENQUIRY https:llenquiry.cegate.gov.intenquiryalices/sealgmICES_action No Date Weight 21 WOODEN PALLETS STC -657 PCS 10130 13 JAN 2019 SILVER BARS NET WEIGHT: HKGCB19000241 NA. NA. TI 20517 KGS 21 PLT INSB16 More>> 20,243.8580 12:01 KGSREMARKS: REFERENCE INVOICE NO. 190107000043 S IGM No IGM Date INW Date File Name No. Gateway Voyage IMO No Port No. Vessel Container Code Details 25 JAN 27 JAN 12215622 2019 12:01 2019 12:01 1234 AABCA273INSA 63873319192125012019 NNSA1 316 9597484 9V9916 View IGM No Line No Subline No Container Details Container Status 2215622 1013 0 CATU6840387 FCL Document 2 2/7/2019 https:/lenquiry.icegate.gov.in/enquiryatices/biStatusAction BL STATUS IGM IGM LINE NO. RTN DATE SUBLINE NO. MAWB NO. MAWB HAWB HAWB GATEWAY PORT CARGO INW DATE NO. DATE PORT DEST. MVNT DATE 27 3085705 27 JAN....
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....G NOTE FOR ANIMALSOR GENERAL MERCHANDISE OTHER THEN DANGEROUS GOODS BCL - APL EN TORK-2S 2701 GFEL, CAUS79066,20,,,1005375,14.69,2.30,16.99, RC, PVC RESIN, CL, 2020, 1732 319, 20190127,2215622,1732319,... GELL, US283890,20,1,,L805368,14.69,2.30,16.39,BRC, VC RESIN, CL, 2020, 1732319,26190127,2215622,1732319, GEIL, OCU2035380,20,,,1005370,14.69,2.30,16.39,sac, VC RESIN, CL, 32020, 1732319,20190127,2215622,1732319, GEIL, CAIU6599074,20,5, 6.1,51848443,19.45,2.30,21.75, KD, METAPHYLINE,RCL, 2020,1732320,20190127,2215622,1732320,1,... GIL, CAIU6840387,30,,,16967, 20.52,2.30,22.82,,SILVER BARS, CL, J2020,1732320,20190127, 2215622,1732320,2..... 28/01/19 Document 5 27790/94/00055 SAM 20 C BDCATEGOR STIL P CHOPPED SANDS 238 TEMA KMD 279164250006 TIMU KUD 20 C xzz1250 J 170900303 1700/ SODIUM 233 804117 NON HAZMICALS 30.39 125 KV 1408 TRIZTELENO 184 1748 01/0 17.7 20 408 00005 655 BEAURELS 43 20 G T22031 2 MET 794 L/ COMMURC CHLORIDE 131 FOU 群 30 821781250 MLCLAY TH MSC 4 012779162425 1847 KAMU POLIM....
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....PUERTOS 30 - an SUUHONIC ACID HAZARDOUS CARGO 23.05 MED4254411 C STR0437 TELEOR Has 40 monal concMET POLYCARBONATES POLYCARBONATES 1913 25517 38.95 136490 TEMUNHARK GMP BC TL 2735 120000 HUMA 20 62290005386 BMCT 1732055 |EURONOUS] 22.31 GT530 MD K APT OCTA 2131 ROU45564 IME KHOO 2273322000405 APT 1714 CORO 1732 3530 RCL 227316129008 BAZIM SL MC 20 41 GTL DARI BURI 4722/200 PVC RESIN 35.30 КОРЕ ПЕМ 1987 841 M HMM T12750 BMCT 1785 STANSTED 219 CUBIST 400 GT203615 BMC 1732 AZARDOUS CHAD 18.31 87706 ONEPL MGT TIANUM O 28.12 TEMJORKARE BMO IN 2344 MIC C EMO 20 C 10 MAS 17934900000008ADRYLIC POLYMER EMULSION NOW HALCHEMICALS 348 2029 C 20 Glu TSLU21530 TSU 20 G G 17004004/2004 TOU798641 140 40 BC 7212500000CT 17515/201 SEGUDALT D 30 008 BWD2271625 T 1794804/09 POLIESTER CHIPS ADO FOLYCARBONATES SODIAN MITTE 2153 205 1280230 2843 1205300 213 4734 Document ....