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2024 (2) TMI 27
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....ms House Agents Licensing Regulation, 2004]. An offence report, in the form of the show cause notice VIII/ICD/06/TKD/SIIBExp/ DRI-SCN/Floor Covering/66/2017/8770 dated 22.10.2019 was received from the Additional Commissioner of Customs (Import), ICD, TKD, New Delhi on 31.10.2019 informing of the modus operandi of unscrupulous traders/exporters who were exporting goods described as Floor Covering (Braided) of Man Made Fiber under claim of Duty Drawback provisions and Focus Product Scheme (in short, "FPS") by resorting to mis-declaration of description and value. It was alleged that the appellant M/s Air Impex Cargo Agency, had facilitated the Customs clearance for the said unscrupulous traders/exporters. This was based on an intelligence received by the Directorate of Revenue Intelligence. The unscrupulous traders/exporters were: (i) M/s Dwarka Trading Company, A-418, Mansa RamPark, Uttam Nagar, New Delhi. (ii) M/s Adarsh Enterprises, B-99, Patel Garden, Uttam Nagar, New Delhi. (iii) M/s Shree Balaji Trading, Plot No. 13, B-I, Nanhey Park, Uttam Nagar, Matiyala, New Delhi. (iv) M/s Shree Durga Fashion, 92-B, Nawada Village, Uttam Nagar, New Delhi. (v) M/a Apex Trading, A-4....
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.... Shri Moti Khanna, Director, M/s Air Impex Cargo Agency was summoned and in his statement dated 31.12.2014 recorded under Section 108 of the Customs Act, 1962, inter alia, stated that all new clients were advised to first fulfil the KYC norms/formalities and only after that he handled their Customs clearance work. He stated that they had verified the KYC documents with the original and that they did not verify the existence of the declared office or residential address of the client. He further submitted that he had started with export clearance since January, 2014. In order to increase his business he had cleared the first consignment of floor coverings in the month of June 2014. His employee namely Shri Suresh Kumar used to look after the clearance work in ICD, Patparganj. He admitted that he used to send the documents to Shri Suresh Kumar who after receiving the Shipping Bills and other documents used to complete further formalities like examination and obtaining let export order. He himself had never seen the consignment of floor covering prior to shipment and they had filed the documents given by the exporter on the basis of which they proceeded with the Customs formalities. S....
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....ts forms the basis of customs documentation; that they verified the KYC documents with the original; at the time of filing shipping bill IEC details are verified through DGFT site only then the same are filed before Customs. Thus, it was an incorrect observation by the Adjudicating Authority that the appellant had failed to comply with the provisions of Regulation 10(a). 7. The learned counsel also submitted that the statements of persons relied upon in the impugned order were not made available to the appellant, and hence could not be rebutted by them.He contended that the impugned order had held that the appellant had contravened the provisions of Regulation 10(e) of CBLR, 2018, as he was aware of the inferior quality of the goods and of overvaluation of the goods made by exporter, and had willfully and intentionally did not verify the correctness of the value, which was incorrect. The learned counsel submitted that the Noticee and his employee were not aware about such misdeclaration of goods and value as the said mis-declaration came to the notice to the department only after due examination and investigation by the DRI. 8. The learned counsel also reiterated that as per the ....
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....Vs. Commissioner of Customs (Prev.), Mumbai - 2014 (308) ELT 698 (Tri.-Mumbai); ii. Commissioner of Customs (Export), Chennai Vs. Sahaya Edin Pabhu - 2015 (320) ELT 264 (Mad.); iii. Sij Electronics Com. Tech. Pvt. Ltd. Vs. Commissioner of Customs, Kochi - 2001 (129) ELT 528 (Tri.-Bangalore) - it was decided that in absence of mens rea penalty was imposable for technical breach of law when there is no defiance of law or conduct which is contentious or dishonest. iv. Akbar Badruddin Jiwani Vs. Collector - 1990 (47) ELT 161 (SC). v. Landing & Shipping Agency Vs. Commissioner of Customs (Admn.), Kolkata - 2003 (158) ELT 78 (Tri.-Kolkata); vi. International Shipping Agency Vs. Commissioner of Customs (Gen.), Mumbai - 2006 (196) ELT 439 (Tri.-Mumbai); vii. Falcon Air Cargo & Travel (P) Ltd. Vs. Commissioner of Customs, New Delhi - 2002 (141) ELT 284 (Tri.- Delhi) - it was held that it is well settled law that punishment should be commensurate with offence in the facts and circumstances of the case and in view of inquiry officer's report it was not found fit case for revoking the license and depriving of the appellant of their means of livelihood. viii. Overland Agency ....
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....s clearance of the floor coverings exported in the name of the said firms. Further, the learned Authorised Representative contended that there is nothing on record to indicate that his statement recorded under Section 108 of the Customs Act, 1962 was retracted. Further, the statement given by him was without any contradiction and the appellant had admitted to complicity. Furthermore, the facts narrated in the statement are consistent with the other evidences gathered during investigations. He relied on the decision in the case of Percy Rustomji Basta Vs. State of Maharastra - AIR 1971-SC-1087 wherein the Supreme Court held that a person summoned under Section 108 is told by the statute itself that under threat of criminal prosecution, he is bound to speak what he knows and states it truthfully. The Supreme Court in the case of Surjeet Singh Chhabra Vs. Union of India - 1997 (89) ELT 646 (SC) has held that the customs officers are not police officers, therefore, the confession, is an admission and binds the appellant. Therefore, the aforementioned statements are authentic and reliable having evidentiary value in view of the above established law. 12. The learned Authorized Represen....
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....y the appellant nor ever had been questioned nor even been informed to the competent authorities. The appellant is otherwise bound by the act of his G-Card holder. Otherwise also, without the knowledge of the Customs Broker, the goods could not have been diverted. He is equally bound by the act of his authorised representative/agent. Keeping in view the same and the observation of Hon'ble Supreme Court in K.M. Ganatra & Co. (supra) case about the important duties of the CHA and the amount of due diligence as is required to be observed on their part, we are of the firm opinion that CHA has violated the obligations imposed upon him under CBLR, 2013/2018. The above observations are sufficient to hold that the violation of relevant Regulations is so grave that principle of proportionality is not opined to have been compromised as is impressed upon by the appellant. The failure thereof invites the penalty as that of revocation of licence." In the instant case, the appellant had not exercised due diligence and had deliberately facilitated illegal exports from his firm. Consequently, the appellant had violated the various provisions of Regulation 10 of CBLR, 2018. Therefore, he prayed fo....
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....n nor through any authorised representative. The appellant by the letter dated 10.12.20 sought for an adjournment and the hearing was fixed for 16.12.20. Sh Rajkumar Sharma, F card holder and Sh Satyapal Bharti, Accountant appeared for personal hearing. The argument that the case was heard ex parte does not hold water. 17. As regards the violations of various provisions of the CBLR stands proved, we note that the impugned order has clearly elucidated the manner in which the appellant had contravened the provisions of the CBLR, 2018. We take note of the fact that investigations have revealed that the appellant was in touch with Shri Kultar Singh and relied on him for the IEC codes. We also find that the appellant did not independently verify the actual IECs holder of the said six firms i.e. M/s Dwarka Trading Company, M/s Aadarsh Enterprises, M/s Shree Balaji Trading, M/s Shree Durga Fashion, M/s Apex Trading and M/s Kanak Fashion. It is also established that the appellant was well aware that Shri Kultar Singh was exporting the goods through dummy firms. It is thus evident that the appellant had not verified the correctness of Importer Exporter Code (IEC) number, Goods and Services....
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....f the export goods. 19. The learned counsel also submitted that in the absence of mensrea, no penalty is impossible for technical breach of law. He also stated that the punishment should be commensurate with the offence, and suspension of license deprives the licencee and his workers their livelihood. In the absence of serious irregularity, license should not be revoked. In this context, we once again revert to the statement of Sh Vaibhav Goel wherein he stated that in addition to the clearing charges of Rs. 10,000/- per container, the appellant had charged him Rs. 60,000/- per container in cash for which no bill was issued by them. This clearly establishes the mensrea of the appellant in this charging extra in order to facilitate the clearance of the impugned goods. 20. We observe that the High Court of Delhi in its decision in the case of Bhaskar Logistic Services Pvt Ltd., Vs Union of India [2016(340)ELT 17(Del)] held as follows:- "33. As regards the role and responsibility of a CHA/Customs Broker in such clearance, Regulation 11(n) of CBLR clearly provides that Customs Broker shall verify the antecedent, correctness of IEC, identity of his client and functioning of his clie....
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....ensing Regulations, 2013, that "Where the Customs Broker has authorized any person employed by him to sign documents relating to his business on his behalf, he shall file with the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, a written authority in this behalf and give "prompt notice in writing if such authorization is modified or withdrawn". It is not the case of the petitioner that after said Sheikh Khursheed severed his relationship with the petitioner-company, it informed the concerned Deputy Commissioner of Customs or Assistant Commissioner of Customs withdrawing authorization given by it to said Sheikh Khursheed. Clause (9) of Regulation 17 of Customs Broker Licensing Regulations, 2013, casts obligation on the Customs Broker to exercise such supervision as may be necessary to ensure proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment." 21. We also take note of the decision of the Tribunal in the case of Noble Agency Vs Commissioner of Customs, Mumbai [2002 (142)LT 84(Tri-Mum)] highlighting the role of the CHA/CB, which has....