TaxTMI 
TaxTMI 
2024 (10) TMI 576
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....submissions made by the appellant passed the impugned order holding that the appellant had violated the provisions of Regulations 10(a), 10(d), 10(e), 10(f), 10(k) and 10(n) of the CBLR. He held that the appellant had not violated Regulation 10(b). For these violations, the Commissioner revoked the licence of the appellant, forfeited its security deposit and imposed penalty of Rs. 50,000/-. 2. The facts which led to the issue of the show cause notice are that one, M/s JCS Botanicals, Greater Kailash, New Delhi [the importer] filed bill of entry dated 04.02.2022 at ICD, Jhattipur, Panipat to import goods declared as the following :- S. No. Item Description Quantity Value (Rs.) 1. DRIED ROOT CROCUS (CORCUS SATIVUS L) 10000.00 Kgs. 1149032.81 2. GULGAFIZ (GENTIANA OLIVIERI GRISEB) 2720.00 Kgs. 520894.88 3. SALAB (DACTYLORHIZA HATAGIREA 240.00 Kgs. 55153.58 4. SHIKAKAL (PASTINACA SATIVA LINN) 10000.00 Kgs. 1149032.81 3. The bill of entry was filed with M/s Prakhar Gupta as the Customs Broker. The consignment was examined and samples were sent to the Plant Quarantine and to the Wildlife Crime Control Bureau. Based on their reports, it was conclu....
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....ion. (vi) Revocation of Customs Broker's licence is a harsh action not commensurate with the offence. (vii) The impugned order was passed based on order-in-original which was passed without issuing the show cause notice and without grant of personal hearing to the appellant or its Director. (viii) The statement of Shri Prakhar Gupta, a co-accused, is not reliable. (ix) Shri Prakhar Gupta was not made a party by the Commissioner in this case. (x) The statement by Shri Prakhar Gupta needs to be corroborated with independent documentary evidence (xi) The whole case is based on retracted statement, although the retraction was delayed. (xii) The importer in this case is in existence, presented himself for examination, cooperated with the investigation and paid all Government dues including redemption fine and penalty and re-exported the goods. Therefore there was no loss of revenue. Revocation of Customs Broker licence in such a case is unwarranted. (xiii) There may be procedural infractions or violations of the regulations, but there is no allegation of malafide intention on the part of the appellant. (xiv) The Joint Commissioner, who had passed the order-in-original ....
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....t he had collected original documents from the importer who filed the bill of entry for clearance who failed to submit the original documents. The appellant had violated Regulation 10(k). (v) Thus, the appellant had violated Regulations 10(a), 10(d), 10(e), 10(f) and 10(k). The impugned order was, therefore, fair and proper and also no interference is required and the appeal may be dismissed. 8. We have considered the submissions on both sides and perused the records. 9. We need to decide the following questions :- (a) Did the appellant violate Regulations 10(a), 10(d), 10(e), 10(f) and 10(k) of CBLR. (b) If so, is the revocation of licence, forfeiture of security deposit and penalty of Rs. 50,000/- proportionate to the violations. 10. The facts are not in dispute. Prohibited goods were imported by the importer. They were described correctly. Even if the importer was not aware of the import restrictions, the customs broker is expected to be aware of the restrictions and prohibitions and advise the importer. If the importer still does not follow the law, it is the responsibility of the Customs Broker to bring this fact to the notice of the Assistant Commissioner/Deputy Comm....
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....e Commissioner. 17. We have considered these submissions. The short question to be answered is if the appellant had acted as the Customs Broker with respect to the bill of entry and instead of using its own licence used the licence of M/s Prakhar Gupta and filed the bill of entry. From the submission of the appellant in this appeal itself, it is evident that Shri Awadhendra Kumar, director of the appellant had filed the bill of entry using the Customs Broker licence of M/s Prakhar Gupta. This fact having been admitted, need not be proved. It is also a matter of record that all documents were sent by the importer to the appellant's E-mail ID and the importer had not contacted Shri Prakhar Gupta. Shri Prakhar Gupta also confirmed that he had allowed the appellant to use his licence to file bill of entry although he denied allowing them to use his licence in respect of this bill of entry. It needs to be pointed out that bills of entry are filed online through the Customs EDI system. Therefore, it is imposible for anyone to file a bill of entry using the credentials of a Customs Broker unless the Customs Broker lends its credentials to such a person. In this case, admittedly Shri Prak....
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....legally for the purpose. 20. It is also submitted that the appellant should not suffer and is not responsible for any action taken by its directors and employees. We disagree. A Customs Broker is always responsible for the action of its employees and Directors. Otherwise, there is hardly any case where the Customs Broker - especially if it is a company - directly comes to the Customs House and files bills of entry. Its employees do so. It is also not the case here that Shri Awadhendra Kumar and Shri Sanjay Kumar of the appellant firm were operating privately independent of the appellant firm. All documents were made E-mailed to the appellant's E-mail ID. Using these documents, the bill of entry was filed and Shri Sanjay Kumar an employee of the appellant attended during examination of the goods. We have no doubt that both of them acted as employees of the appellant. Therefore, the appellant cannot escape the responsibility. 21. We now proceed to examine each of the alleged violations. Regulation 10 (a) requires the Customs Broker to obtain an authorization from each of the companies, firms or individuals by whom he is employed as Customs Broker and produce such authorization when....
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....n 10 (k) requires the Customs Broker to maintain up-to-date records, such as, bill of entry, shipping bill, trans-shipment application etc. All correspondence, other papers relating to his business as Customs Broker and accounts including financial transactions in an orderly and itemized manner. In this case, the importer stated that he had sent the documents/details of the consignment by E-mail to [email protected] of the appellant on the direction of its Director Shri Awadhendra Kumar and that Shri Awadhendra Yadav collected the original documents, but he failed to submit the original documents even when the customs authorities asked for them. Thus, we find that the allegation of violation of Regulation 10 (k) of CBLR needs to be sustained. 26. The last question to be answered is the proportionality of the punishment to the violations. We find that this is not a case of lapse of the appellant due to carelessness or oversight. A Customs Broker is naturally expected to file the bills of entry in its own name just as an advocate is expected to file a vakalatnama in his own name in any court of law. It is impossible for any Customs Broker to use somebody else's credenti....