TaxTMI 
TaxTMI 
2024 (8) TMI 1061
X X X X Extracts X X X X
X X X X Extracts X X X X
....toms Broker M/s Prakhar Gupta for violation of Regulation 10(a), 10(b), 10(d), 10(e), 10(f), 10(k) & 10(n) of CBLR 2018. (iii) I order for surrender of photo-identity card issued in Form-F by the Customs Broker Shri Prakhar Gupta under proviso to Regulation 17(8) of CBLR, 2018." 1.2 Appeal No. C/70439/2022 is directed against Order No. Order No. 02/COMMR./CUSTOMS/LKO/2022-23 dated 12.07.2022 of the Commissioner Customs (Preventive) Lucknow. Vide the impugned order following has been held "ORDER In exercise of powers conferred upon me under the provisions of regulation 16(2) of CBLR, 2018, I hereby continue the suspension of Customs Broker License No. 05/CB/REGULAR/KNP/2016 dated 28.09.2016 (PAN:ASLPG5339H) issued to Shri Prakhar Gupta, 117/H-2/115, Pandu Nagar, Kanpur-208025,' with immediate effect till further orders." 2.1 Appellant is holding a Customs Broker License No. 05/CB/REGULAR/KNP/2016 dated 28.09.2016 (PAN: ASLPG5339H) issued by the Commissioner of Central Goods and Service Tax, Kanpur. The Customs broker is registered under Regulation 7(3) of Customs Broker Licensing Regulation, 2018 (here-in-after referred as 'CBLR, 2018') to work....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to above order dated 28.03.2022, the Commissioner of Customs, (Airport & General), New Delhi-110037 passed a Prohibition Order No.29/ZR/PROHIBITION/POLICY/2022 dated 26.04.2022 holding as follows: "ORDER (i) I hereby prohibit the Customs Broker License No. 05/CB/Regular/KNP/2016 (PAN ASLPG5339H) valid upto 27.09.2026 of M/s Prakhar Gupta from working in the all station of Customs under Delhi jurisdiction (Port and Airport & ACC) with immediate effect under Regulation 15 of CBLR 2018. (ii) M/s Prakhar Gupta is directed to surrender all the original Customs Pass issued to their employee/ partners/directors immediately. (iii) Further forward the above case to Office of Commissioner of Customs. Kanpur/Lucknow(parent Commissionerate) for necessary action under Regulation 16 and/or Regulation 17 of CBLR 2018. 9. This order is being issued without prejudice to any other action that may be taken against the CB or any other person(s)/ firm(s) etc under the provisions of the Customs Act, 1962 and Rules/Regulations framed there under or any other law for the time being in force for the present or any other past violations committed by them" 2.4 Conseq....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ignment. The ID/Password and information pertaining to Digital Signature are confidential and known to the CB only. Hence, it is impossible that the impugned B/E could have been filed without knowledge and consent of the CB. Appellant has contravened the provisions of Regulation- 10 (a) of the CBLR, 2018 • As per CBLR, 2018, it is obligatory on part of the CB to get such authorization from the Importer and to authorize his G Card holder for examination of such consignment before Customs authorities, to which he failed. Appellant has contravened the provisions of Regulation- 10 (b) of the CBLR, 2018 • Appellant was required to advise his clients about the provisions of the relevant Acts, Rules & Regulations while import of goods. Appellant failed to observe and has violated the obligations cast upon him under CBLR, 2018 by filing a B/E violating the laid down procedures in respect of such prohibited goods which were not permitted for import into India and cannot be cleared by Customs authorities. Appellant has thus contravened the provisions of Regulation- 10 (d) of the CBLR, 2018. • Appellant overlooked the laid down procedures for handling an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he license of the Appellant: "12.6 Now, coming to the contention of the party regarding the double jeopardy subsequent to issuance of suspension order dated 24.05.2022 under Regulation 16(1) ibid, I want to draw attention on Regulation 15 of CBLR, 2018 which is reproduced as below:- 15. Prohibition.- Notwithstanding anything contained in these regulations, the Principal Commissioner or Commissioner of Customs other than those referred to in regulation 7 may prohibit any Customs Broker from working in one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his obligations as laid down under regulation 10 in relation to work in that section or sections: Provided that the period for which any Customs Broker may be prohibited from transacting business in one or more of the Customs Stations shall not exceed one month from the date of such prohibition: Provided further that where the license of the Customs broker is suspended as a consequence to prohibition, the time period specified in regulation 16, shall be reckoned from the date of such suspension From Regulation 15, it is clear that the t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eakage of credentials, the Customs Broker was required to inform the department immediately and also to lodge a police complaint but he did nothing. Thus, I find the contentions of the party Shri Prakhar Gupta as not tenable 12.9 As regard the contention of the party that he has not defaulted any of the provisions of Regulation 10(a), (b), (e), (f), (k) & (n) of CBLR, 2018, I take one by one Regulation. (i) Regulation 10(a)of CBLR, 2018: - obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be. In the instant case, Mr. Prakhar Gupta has stated that he does not know the importer and the said BOE was filed in the name of his licence. The importer denied of having any contact/agreement/dealing with Shri Prakhar Gupta, which means, the impugned consignment was attempted for the clearance without obtaining the requisite authorization by Shri Prakhar Gupta from the importer Further, I find that the two firms, namely, Ms Prakhar Gupt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....akhar Gupta on the basis of his authorization letter. It was not followed in letter and spirit by him and attempt was made by him to shift the responsibility of mischief on other firms and personnel. Thus, I find that Shri Prakhar Gupta of M/s Prakhar Gupta has contravened the provisions of Regulation 10 (b) of the CBLR, 2018. (iii) Regulation 10 (d) of CBLR, 2018: advise his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be. In the present case before me, I find that it was obligatory on part of M/s Prakhar Gupta to advise his client M/s JCS Botanicals about the provisions of the relevant Acts and Rules & Regulations while import of goods. As per Plant quarantine Order, 2003, the 'Direct Root Crocus (Crocus Sativus L)', Salab (DactylorhizaHatagirea D) and Shikakal (Postinaca Sativa L) are not allowed to be imported into India but they imported these items. Further, dried plant material of Gulgafiz (Gentiana Olivieri G) for medical purpose i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers did not disclose their modus operandi to the importer. Further, as discussed in para 10.1 (i) & (iv) supra, M/s Prakhar Gupta failed to observe the laid down procedures for filing documents for import of goods with his client and did not inform the provisions of law for the import of the impugned goods to his client who was entitled to the same. Therefore, I find that Shri Prakhar Gupta of Ms Prakhar Gupta has contravened the provisions of Regulation 10 (f) of the CBLR, 2018. (vi) Regulation 10 (k) of CBLR 2018: maintain up to date records such as bill of entry, shipping bill, transshipment application, etc., all correspondence, other papers relating to his business as Customs Broker and accounts including financial transactions in an orderly and itemised manner as may be specified by the Principal Commissioner of Customs or Commissioner of Customs or the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be. In the instant case, I find that M/s Prakhar Gupta has failed to maintain up to date records such as bill of entry and other documents in respect of the impugned import consignment and has attempted unsuccessfull....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the provisions of Regulation 10 (n) of the CBLR, 2018, also. Therefore, I find that Shri Prakahar Gupta is equally responsible in the case where any mis-declaration or any fault made in filling of documents or clearances of import / export by M/s Goodwings Maritime Pvt. Ltd. Mere saying that he has not authorized anyone for clearances of the said consignment is an afterthought and a futile attempt to obfuscate the departmental proceedings. The revelation of Shri Prakahar Gupta came only when consignment was found improper. I believe that such behavior from an educated person, who is licensed to work with government for smooth functioning of import / export, is not acceptable. In this case, 1 am of the view the BOE No.7368812 dated 04.02.2022 pertaining to the importer M/s JCS Botanicals was filed in the name of M/s Prakhar Gupta through his login ld and password. Thus, I find that the role of Customs Broker is highly unsatisfactory as the Custom Broker failed to comply with the obligations imposed upon him under the provisions of Regulation 10 of the CBLR, 2018 and failed to discharge his duties as a Customs Broker. I totally agree with the Inquiry report submitte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontravention of any provisions or failure to comply with any provision to Regulations, penalty could be imposed on the Customs Broker. Here, in the present case, it has already been proved that the customs Broker has convened provisions of Regulation 10 of CBLR, 2018. Therefore, I impose penalty on the Customs Broker under Regulation 18 of CBLR, 2018. FINDINGS I find that the party Shri Prakhar Gupta, in his statement dated 04.03.2022 submitted, interalia, that neither he filed the subject bill of entry No.7368812 dated 04.02.2022 nor he had any information of mis-disclared goods which were seized at ICD Jhattipur, Panipat. He maintained that his customs broker login Id and password were somehow leaked and M/s Goodwings Maritime Pvt. Ltd. filed the subject bill of entry through his credentials, in the name of Customs Broker M/s Prakhar Gupta. He also submitted that he informed the Customs authorities of the illegal import vide bill of entry no.7368812 dated 04.02.2022, through e-mail dated 21.02.2022 Poring over the documents available on record, I am of the opinion that the party's plea that he himself informed the Customs official through e-mail dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... then forwarded to the Importer for cross-checking. After confirmation of the details by the importer, the CB uploads the check list electronically in EDI system which subsequently generates the Bill of Entry. This digital signature is the responsibility of the person who possesses it. The party Shri Parkhar Gupta has miserably failed to submit anything that his unique ID, Password and Digital Signature were not used by him but by someone else. He has also not informed about any legal action taken by him in case of stolen identity, despite a lapse of nearly one year since the illegal import. Besides, in his statement dated 04.03.2022 the party Shri Prakhar Gupta has stated that Customs Broker M/s Prakhar Gupta and Ms Goodwings Maritime Pvt. Ltd., have mutual understanding and are working hand in glove for all Customs related work. The Bill of Entry no. 7368812 dated 04.02.2022 was filed with the party Shri Prakhar Gupta's credentials using his ID and digital signature and Shri Prakhar Gupta, himself gave his credentials to M/s Goodwings Maritime Pvt. Ltd. I find that this a modus operandi adopted by the party Shri Prakhar Gupta to repudiate when some untoward incidence like pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the said authorization letter dated 21.02.2022 was received by him through Mrs. Mohini (Mob. No. 9990707280) who is an accountant in the Customs Broker M/s Goodwings Maritime Pvt. Ltd. CB No. R-14/2020; that he does not know the importer personally. • Statement dated 24.02.2022 of Shri Archit Sharma Prop. of M/s JCS Botanicals (the importer):- In his statement dated 24.02.2022, Shri Archit Sharma inter-alia stated that Prakhar Gupta, CHA No. ASLPG5339HCH003 is the Customs Broker in the subject consignment; that he does not have address, email & contact no. of the Customs Broker Prakhar Gupta; that they sent the hiring letter and other relevant documents to the customs broker in this case through his email address "[email protected]" to email "[email protected]" of M/s Goodwings Maritime Pvt. Ltd. the clearing agent or customs broker; that he does not have the copies of the documents; that he is not sure whether M/s Goodwings Maritime Pvt. Ltd. the clearing agent/customs broker and Prakhar Gupta, the Customs Broker are same or not, but he sent the documents on the said email address as provided by Customs Broker Prakhar Gupta • Sta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... clearance of subject consignment, how they were hired as Customs Broker by the importer and how the documents for filling the import documents under subject consignment were provided to them by the importer, he stated that he did not have any contact with the importer for clearance of this consignment and the same was filed by M/s Goodwings Maritime Pvt. Ltd. in the name of M/s Prakhar Gupta; that he never received or got any authorization/agreement or any other document from the importer or any other person for filling papers for clearance of subject consignment and so he does not know anything about this consignment or anything about this matter. He, further stated that for the last six months he is taking care of his father in Kanpur and looking after his business there and he is visiting Delhi about after six months; that the importer and Shri Awdhendra Kumar of M/s Goodwings Maritime Pvt. Ltd contacted him on and after 21.02.2022 and told him about this matter; that only the importer and/or Shri Awdhendra Kumar of M/s Goodwings Maritime Pvt. Ltd. can tell about this import consignment and he cannot tell anything about it. • Statement dated 07.03.2022 of Shri Awad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nk letters on his letterhead. • Statement dated 21.03.2022 of Shri Awadhendra Kumar:- In his statement dated 21.03.2022, Shri Awadhendra Kumar stated that his statement dated 07.03.2022 is true and correct; that Shri Sanjay Kumar and Mrs. Sneha both are employee of M/s Goodwings Maritime Pvt. Ltd. and they also work for M/s Prakhar Gupta who also have office in the same premises i.e. H.No. 265, Flat No. FF I, Bhuyia Chowk Mehrauli South Delhi-110030; that his company M/s Goodwings Maritime Pvt. Ltd. has no role in clearance of the said consignment under Bill of Entry No. 7368812 dated 04.02.2022 of M/s JCS Botanicals; that he collected the original documents, original authority letter from the importer for filling for clearance for the consignment on behalf of M/s Prakhar Gupta; that he does not have these original documents and will submit the same by 22.03.2022. On being pointed out regarding the statement of Shri Sanjay Kumar that he did not work for Customs Broker M/s Prakhar Gupta, Shri Awadhendra Kumar stated that Shri Sanjay Kumar worked for M/s Prakhar Gupta in this case only though he is not a worker or employee of M/s Prakhar Gupta Shri Awadhendra Kumar state....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Customs Broker M/s Prakhar Gupta, when the said consignment was filed for clearance; that however he was under impression that Shri Awadhendra Kumar would have done it correctly 2.12 Shri Awadhendra Kumar submitted copy of an agreement letter dated 16.07.2018 stating therein as "I hereby confirm you that I, Prakhar Gupta confirm that we (CHA-PRAKHAR GUPTA & AWADHENDRA KUMAR) are partner at mutual understanding terms and in all circumstances we both are liable to handle the situation and transact business mutually and no financial liability shall fall on M/s Prakhar Gupta" 4.7 From the above excerpts as recorded in impugned order we do not find even an iota of evidence as per which it can be concluded that Appellant was responsible for filing of the said bill of entry. Proprietor of importer Mr Archit Sharma specifically states that he never had contacted or met the Appellant or was even under impression that bill of entry for clearance of his consignments were to filed by the Appellant. On the contrary he specifically states that the work for the clearance of the said consignment had been entrusted by him to M/s Goodwings Maritime Pvt Ltd. He had even sent all the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the impugned consignment has not been filed for clearance by M/s Prakhar Gupta, the Customs Broker but the same has been filed by Mr. Awadhendra Yadav, Director of M/s Goodwings Maritime Pvt. Ltd.; Further, there was no contacts/ agreement dealing between Customs Broker M/s Prakhar Gupta and Importer M/s JCS Botanicals for clearance of the impugned consignment, as evident from the statement of Mr. Prakhar Gupta and Mr. Archit Sharma. Instead, Mr. Awadhendra Yadav dealt with the importer for clearance of the consignment, in the capacity of Director of M/s Goodwings Maritime Pvt. Ltd., the another Customs Broker Co. The importer dealt with Mr. A wadhendra Yadav and provided him the requisite documents which were filed for clearance, Thus clearance of the impugned consignment was attempted by the Customs Broker M/s Goodwings Maritime Pvt. Lid, through its director Mr. Awadhendra Yadav without requite authorization, by illegally using the License of Customs Broker M/s Prakhar Gupta." 4.8 Be that as it may be, is solitary case of mis-declaration noted in the present case enough to revoke the licence of a custom broker and deprive him of the livelihood. Evidently t....