TaxTMI 
TaxTMI 
2023 (1) TMI 1149
X X X X Extracts X X X X
X X X X Extracts X X X X
....ccessories, porcelain tiles, hardware tools, baby car etc. supplied by one M/s. Shenzhen Mosland Trading Co. Ltd. and the assessable value declared was Rs.8.65 lakhs. On specific intelligence, the SIIB officers examined the goods on 27.7.2017 and 28.7.2017 and found in the container many undeclared items in the nature of thread seal tape, LED lights, LED display, watches of various brands containing assorted models, PCBs, electric scooter, fried ice-cream machine, garments etc. As the goods were found to be grossly misdeclared, they were detained for further investigation. During the investigation, it came to the notice of the department that the container was removed from the Continental Warehousing Corporation (NS) Ltd. (hereinafter referred to as Continental II CFS) by using forged documents. 3. Show Cause Notices were issued to various parties including the appellants herein for alleged illegal removal of the container using forged documents from the customs area. After due process of law, the Original Authority vide the Order in Original dated 28.9.2019 ordered for confiscation of the goods listed as per Annexure I for the value of Rs.13,92,476/-. An option was given to the i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to have deposed that the appellant handed over the documents for clearance. As per the statement of Shri M.D. Karthikeyan, it is seen stated that he is running a clearance firm and that the appellant had earlier given him the document of one M/s. Sky and Sea Exports since their customs broker license was under investigation. That they had given the appellant 145 import documents during the period July to November 2016 and paid Rs.2,000/- per bill and Rs.8,000/- for undertaking examination work. Shri Karthikeyan in turn contacted the services of one Shri Shiva Ambica Clearing and Forwarding Pvt. Ltd. which is a customs broker and paid Rs.1,000/- per bill. The learned counsel argued that though Karthikeyan named various companies for whom he had done clearance related work, it did not figure out the above M/s. A.K. Imports and Exports involved in this case. Shri Karthikeyan further has stated that Shri Mahesh who worked with Karthikeyan does all mail and other related work. He also identified Karthikeyan from the photographs. It was stated by Shri Karthikeyan that Shri Hari Prabhu had asked him to take one import delivery for which documents were collected by Mahesh from one Ramesh ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ellant had any connection with the goods imported. The authorities below have released the goods to the actual importer who is M/s.A.K. Imports and Exports. There is no case of a fictitious importer or false IEC submitted for the purpose of import on the impugned goods. 10. Though the department alleges forgery of document, they have not sent the documents for expert opinion so as to establish whether the documents presented for clearance of the goods was forged or not. The department has failed to prove that the appellant has any connection with such OOC documents. That therefore the penalty imposed under sec. 112(a) and 114AA deserves to be set aside. 11. The learned counsel for appellant relied upon the Final Order No. 40310 - 40311/2022 dated 24.8.2022 to argue that on similar set of facts with regard to illegal removal of container in respect of Bill of Entry dated 4.5.2017, the Tribunal had set aside the penalties. The decision of the Hon'ble High Court of Madras in the case of Commissioner Vs. Sushil Kumar Kanodia reported in 2015 (319) ELT A73 (Mad.) was relied upon by the learned counsel to support his argument that the statement of co-accused / co-noticee cannot be ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the statement of various persons including Karthikeyan and Mahesh bring out the involvement of the appellant shri Hari Prabhu and Shri Thirumalai Thiayagarajan in the activity of illegal removal of the container from CFS area. Though the appellant feigns ignorance and knowledge about Karthikeyan and Mahesh, the mobile call detail records of the appellant show that they know each other. She prayed that the appeals may be dismissed. Appeal Nos. C/40064 & 40065/2022 13. The learned counsel Shri Derrick Sam appeared and argued for the appellants. He submitted that the appellant is a Customs Broker and had filed Bill of Entry on behalf of the importer. The only allegation against the appellant is that the appellant did not obtain the KYC documents directly from the importer. In fact, the appellant had obtained documents from importer through M/s. We Can Shipping and Logistics. The learned counsel urged that there is nothing under the Customs Broker Licensing Regulations 2013 which states that the Customs Broker has to obtain document from the importer directly. There is no allegation that the KYC documents submitted are not proper. The simple allegation is that the documents were no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en imposed on Shri Thirumalai Thiyagarajan also. The penalties were upheld by the Commissioner (Appeals). 17. The allegation against these appellants as per the Show Cause Notice is as under:- XVII. Shri Hari Prabhu and Sri Thirumalai Thiagrajan of M/s. Raj Brothers created the forged out of charge (OOC) and Pass- out documents and handed over documents for clearance to Karthikeyan and told him to take delivery. Mr. Karthikeyan handed over these documents to Mr. Magesh along with Prabhakar (Prabhu) went to CFS to clear the goods on the basis of these forged documents and for taking delivery; **** ***** **** ***** V. Shri Hari Prabhu of M/s. Raj Brothers took documents and arranged for the forged set of documents and given to Karthikeyan for clearance of containers. For having colluded with the IEC Holder to smuggle the goods in contravention to the import policy, and arranging for the forged Set of documents he is liable to penalty under Section 112 (a) & 114AA of Customs Act, 1962. VI. Shri Thirumalai Thiagarajan of M/s. Raj Brothers took documents and arranged for the forged set of documents given to karthikeyan for clearance of containers. For having colluded with the IE....
X X X X Extracts X X X X
X X X X Extracts X X X X
....from the CFS on 29.9.2017. Interestingly, such removal has happened after the container was examined and detained by SIIB. It is the case of department that forged documents were presented before officer in-charge of CFS to remove the container along with the goods from the CFS area. The Preventive Officer of the department who was in-charge has endorsed his signature on the document. The Preventive Officer denied his signature on these documents. Merely on such denial by the officer, the department has concluded that the documents are forged. When such officer has denied his signature, it is incumbent upon the department to obtain expert opinion as to whether the signature is forged or not. There is no such evidence adduced before me. The statement of Preventive Officer disowning his signature in the document and also the statement of Shri Karthikeyan that the appellant Shri Hari Prabhu had handed over the documents is the sole reason for holding that Shri Hari Prabhu and shri Thirumalai Thiyagarajan have been involved in forging document and removing the container illegally. Shri M.D. Karthikeyan is a co-noticee / co-accused in the proceedings. In the case of Chandra Shekhar R Sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) ELT 121 (Tri.Ahmd.), held that the charge of undervaluation of goods solely based on statement of the buyer who was not presented for cross-examination is not sustainable in the absence of any documentary evidence to establish when such statement was inconsistent and unreliable. A statement of co-accused which has not been presented for cross-examination is not admissible in evidence. The Hon'ble Supreme Court dismissed the appeal filed by the department against such order, thus upholding the view taken by the Tribunal as reported in 2020 (372) ELT A25 (SC). 21. The learned AR has relied upon various decisions to argue that the statements given before Customs Officers under sec. 108 of the Customs Act, 1962 are to be admissible as evidence. There is no quarrel that the statements are admissible in evidence. Such statements have to be supported by other independent evidence so as to establish the role of the accused. Each link of the case set up by the department has to be proved without any contradictions. In the case of Ram Lal Kataria (supra), it was held that the statement of co-accused alone is not sufficient to come to the conclusion that the other accused is guilty. Su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....natory (Form - F) and Director of Southern Clearing & Forwarding Agencies Pvt. Ltd., the CB for dealing with unauthorized persons who are not the actual IEC holder and authorized importer by violating the provisions of the DGFT Policy Circular NO.6(RE-2013/2009-2014 dated 16.09.2013 thereby rendering the goods liable for confiscation and by failure to ensure compliance of Regulation 11 (n) of the Customs Broker Licensing Regulations, 2013. II. Penalty under Section 112(a) of the Customs Act, 1962 should not be imposed on M/s. Southern Clearing & Forwarding Agencies Pvt. Ltd., the CB, for rendering the goods liable for confiscation and by failure to ensure compliance of regulation 11 (n) of the CBLR, 2013." 26. From the above, it can be seen that the only allegation against the appellants is that they have not complied with Regulation 11(n) of CBLR, 2013. The said Regulation requires that the Customs Broker has to obtain authorization as well as KYC documents from the importer for filing the Bill of Entry before the customs authorities. In the present case, the appellant has not obtained such KYC documents directly from the importer M/s. A.K. Imports and Exports. However, they ob....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ayed any active role in the importation of misdeclared consignment. Further even after 9 months of issuing the SCN, so far there has been no proceedings for revocation of the licence. Department cannot issue orders of suspension indefinitely in the guise of revocation of licence so as to obstruct the customs broker from engaging in his activities of livelihood indefinitely. The provisions under Regulation 19(2) for suspension of the licence cannot be used for issuing orders of suspension indefinitely so as to give the effect of revocation of licence. Further the Hon'ble High Court in the case relied upon by the Ld. Counsel has emphasised the necessity for adhering to the time limit prescribed under Regulation 22 of the CBLR, 2013. Appreciating the facts of the case and the law laid down in this regard, we are of the considered view that the impugned order for continuation of suspension of customs broker licence is unjustified and requires to be set aside, which we hereby do. Appeal is allowed with consequential benefits, if any, as per law. 28. In Poonia & Brothers (supra), the Tribunal observed that the Customs Broker is not supposed to verify each and every aspect about the busi....