TaxTMI 
TaxTMI 
2024 (12) TMI 94
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....reafter a show cause notice dated 17.05.2021 purporting to be under regulation 17 (1) of the 2018 Regulations was issued to the appellant. 4. It has become necessary to examine this show cause notice in detail for it has mixed up the notices that are issued under regulation 17 (1) of the 2018 Regulations and that issued under regulation 17 (6) of the 2018 Regulations. The relevant portions of the show cause notice dated 17.05.2021 are reproduced below :- "2. Whereas a letter F. No. VIIV6/ICD/PPG/ SIIB/ 04/Shree Sai/06/2021 dated 19.02.2021 issued by Assistant Commissioner, ICD PPG Commissionerate received in the office on 22.02.2021. It is informed vide above said letter that ICD PPG Commissionerate is investigating a case against illegal import of cigarettes and old & used Photocopier machines by CHA. M/s Lohia travel & Cargo in the guise of Aluminium Scrap. ... 7. Whereas the adjudicating authority while adjudicating the order-in-original No. 16/MK/ Suspension/Policy/2021 dated 23.02.2021, Commissioner of Customs, NCH, New Delhi has observed as under which is reproduced below. xxxxx 8. Whereas the above CB has found to be contraveni....
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....port and/or not appearing for a personal hearing on the date and time fixed for the same, or not complying with the directions as above, the case shall be decided by the Adjudicating authority ex-parte, on the basis of evidences already on record, without any further reference to them. 12. This notice is being issued without prejudice to any other action that may be taken against the Authorized 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. 13. The CB should tender all the evidences on which they intend to rely upon along with a reply to this show cause notice. They should also mention in their reply as to whether they should like to be heard in person before the case is finally adjudicated". 5. As would be seen from the aforesaid portions of the show cause notice that have been reproduced, a reference has been made to a letter dated 19.02.2021 issued by the Assistant Commissioner, ICD, PPG Commissionerate which informs that investigation in a case of illegal import of cigar....
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.... person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs decl....
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....it the charges that an enquiry has to be conducted by the Inquiry Officer under regulation 17 (2). Regulation 17 (3) provides that the Inquiry Officer, in the course of enquiry, shall consider such documentary evidence and take such oral evidence as may be relevant or material to the enquiry in regard to the grounds forming the basis of the proceedings. Regulation 17 (4) provides that the customs broker shall be entitled to cross-examine the persons examined in support of the ground forming the basis of the charges. 8. It is also seen that the show cause notice does not specifically state the grounds on which the license of the customs broker is proposed to be revoked. It only refers to the order that was passed confirming the suspension order. It is also seen that the customs broker has been asked to file a reply to the Inquiry Report, whereas the Inquiry Report has to be submitted only after following the procedure prescribed in regulations 17 (1) to regulation 17 (4) of the 2018 Regulations. 9. On receipt of the aforesaid show cause notice, the appellant sent a mail dated 21.07.2021 which was the date fixed for personal hearing by the Inquiry Officer seeking documents refe....
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....de the documents sought by you, since these pertain to the case file of Policy Section, NCH, New Delhi. Therefore, you are advised to kindly contact Policy Section, NCH for the requisite documents sought by you". 12. A reminder dated 06.08.2021 was also sent by the appellant to the Inquiry Officer for supply of the relevant documents and the same is reproduced below :- "This letter is in reference to the above mentioned Inquiry arising out of the said SCN and personal hearing ("PH") held on 21.07.2021. 2. At the outset, we thank you for affording us an opportunity for PH granted to the Noticee vide letter supra on 21.07.2021 before your good self in the above referred subject matter. We have already submitted our Vakalatnama during PH. 3. During PH, we submitted that the impugned SCN has references to several documents as detailed below but, were not provided to the Noticee :- (i) Letter bearing F. No. VII/6/ICD/PPG/SIIB/04/Shree Sai/06/2021 dated 19.02.2021 issued by Assistant Commissioner, ICD PPG Commissionerate (para 2 of the Impugned SCN), (ii) Statement of Shri Dinesh Kumar Sharma, G card holder (Para 3 of the Impugned SCN), ....
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....nquiry officer who has to supply all the documents. 16. It further transpires that since the time for submission of written submissions was expiring, the appellant submitted written submissions on 10.08.2021 specifically pointing out that the appellant is not in a position to submit a reply in defence but as it was left with no option, it was submitting the interim submission and the final submissions would be submitted after receipt of the documents. 17. A learned counsel for the appellant also appeared before the Inquiry Officer on 10.08.2021. 18. The Inquiry Officer thereafter submitted a report dated 13.08.2021 holding that since the appellant had failed to comply with the provisions of regulations 10(a), 10 (d), 10 (e), 10 (n) of the 2018 Regulations, it would be liable for action under the 2018 Regulations, including revocation of the license, forfeiture of all or part of security and imposition of penalty. 19. A copy of the Inquiry Report was also sent to the appellant by a letter dated 25.08.2021 and the appellant was asked to submit his representation to the Inquiry Report within 30 days. 20. The order dated 08.11.2021 that has been assailed in this appeal r....
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.... Regulations, it calls upon the appellant to submit a reply as to why he should not be held responsible for contravention of regulations 10 (a), 10 (d), 10 (e) and 10 (n) of the 2018 Regulations. As noticed above, the show cause notice fails to differentiate between regulations 17 (1) and 17 (6) of the 2018 Regulations because it calls upon the appellant to submit a reply to the Inquiry Report which could have been submitted by the Inquiry Officer only after an inquiry was undertaken by him. The show cause notice issued under regulation 17 (1) cannot under any circumstances require a customs broker to submit a reply to the Inquiry Report. More important is the fact that despite repeated letters having been submitted by the appellant to the Inquiry Officer to provide the documents referred to in the show cause notice, the Inquiry Officer did not submit the documents which may even mean that the Inquiry Officer himself was not possessed of those documents. What needs to be noted is that the Inquiry Officer directed the appellant to approach the Policy Section of the department to obtain those documents and the Policy Section of the department informed the appellant that the document ....