TaxTMI 
TaxTMI 
2024 (12) TMI 683
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....gnment containing counterfeit Vimal Gutkha had been cleared in container no.SHKU6319529 vide Shipping Bill No. 7549865 dated 24.07.2017 from ICD Loni, for export to Kuwait. The said container was detained and examined by the officers of DRI, JRU, Jamnagar at Customs House, Pipavav. On examination, the goods were found to be mis-declared. There were 350 sacks and 246 boxes in the container. The sacks contained pouches of counterfeit Vimal Gutkha instead of Pan Masala as was declared in the Shipping Bill. The mis-declared goods were seized. 2.2 Investigation undertaken revealed that the appellant had not fulfilled the obligations of the Customs Broker Licensing Regulations, 2013 as also admitted by him in his statements recorded under Section 108 of the Act ibid,- By not employing G-card or H-card employee by him in his firm. He used to get customs clearance of export cargo from ICD Loni through an unauthorized person employed by him. Despite having knowledge and awareness of his obligations/duty as prescribed in the Rule 11 of the Customs Broker Licencing Rules, 2013, he had not acted prudently while arranging Customs clearance of the export consignment examined vide Shipping B....
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....ions leveled on the Appellant are solely on the basis of the statements of Co-Noticees whose cross examination was denied to ascertain the veracity of their statements and thus it is a settled law that the statement cannot be relied without cross examination of tenderers of statement of persons. Reliance is placed on the following decisions: Laxman Exports [2002(143) ELT 21 (SC)]; Andaman Timber Industries [2015 (324) E.L.T. 641 (SC)]; G-Tech Industries [2016(339) E.L.T. 209 (P&H)]; Raklhi Ispat Ltd. [ 2001(129) ELT 701 (Tri.)]; Kedia Overseas [2005 (179) ELT 156 (Tri)]; Gobinda Das [2023 (385) E.L.T. 722 (Tri. Kolkata)]. Authorities below have place reliance on the self incriminating statements of Appellant that was taken by force and coercion by the DRI for fastening guilt upon him and for imposing the penalty without appreciating the very fact that the said statements were duly retracted by the Appellant at first available opportunity before the Hon'ble Court of CMM, Patiala House Court on 22.08.2017 and hence cannot be relied as such. Authorities below have gravely erred by not taking into consideration that a Custom House Agent cannot be penalized for misde....
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.... the Act, on the appellant on account of his misdeeds leading towards the smuggling of prohibited goods. In the light of misdeeds his statement and of the co-accused recorded under section 108 of the Act, the list of his activities in the case is summarized as below; a) He did Customs work and logistics work for the consignment exported incontainer no. SHKU6319529 at ICD, Loni under Shipping Bill No.7549865 dated 24.07.2017, filed by M/s Navrang Jewel and Export, Ghaziabad; b) He was contacted by two persons viz. Sh. Mehmood and Sh. Shubham Garg for arranging customs clearance and logistic support for the export consignment and they told him to export Gutkha and other house hold items to Kuwait for which he agreed to do this work for Rs. 1.50 lakh. c) The consignment covered under Shipping Bill No.7549865 dated 24.07.201 containing Gutkha and other miscellaneous items was loaded at the godown near Kanjhawala Chowk, Delhi but there was no factory/ godown stuffing permission for this firm. At the time of stuffing of the goods his representative was present. d) The details of items i.e. gutkha and other house hold items covered under Shipping Bill no.7549865 dated 24.07.2017 w....
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....f his obligations/duty as prescribed in the Rule 11 of the Customs Broker Licencing Rules, 2013, he had not acted prudently while arranging Customs clearance of the export consignment examined vide Shipping Bill 7549865 dated 24.07.2017 and shipped in Container No. MRKU 6319529. He had knowledge that the consignment as above contained mis-declared/ un-declared goods i.e. counterfeit Vimal Gutkha in plastic pouches but to earn easy and quick money, he failed to inform this fact to the Customs Assistant/ Deputy Commissioner as mandated in the Rule 11 of the Customs Broker Licencing Rules, 2013 due to greed for ease money. Therefore, he knowingly indulged in facilitating the export of prohibited goods i.e. Gutka, in plastic pouches by providing logistic support viz transport, preparation of export documents, custom clearance etc in contravention of provision of Section 113 of the Customs Act, 1962 as well as in contravention of Plastic Waste(Management and Handling) Rules 2011. He had provided container for stuffing of the prohibited goods at unspecified address even though the exporter in the instant case was not having any valid permission for self factory sealing. Further, he faile....
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....l the obligations of Customs Broker as provided in the Customs Broker Licensing Regulations, 2013 which are read as under: "Customs Broker Licensing Regulations, 2013 (A) 2. Definitions. - In these regulations, unless the context otherwise requires, (c) "Customs Broker" means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of corveyances or the import or export of goods at any Customs Station; (B) 11. Obligations of Customs Broker- Customs Broker shall (a) obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorization whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (b) transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (c) not represent a client in any matter to: which the Customs Broker, as a former employee of the Central Board of Excise and Customs gave personal consideration, o....
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....encing Rules, 2013 due to greed for ease money. Therefore, I find that he has failed to fulfill the obligations of Customs Broker as provided in the Customs Broker Licensing Regulations, 2013. He abetted and facilitated the smuggling of the counterfeit Vimal Gutkha vide Shipping Bill 7549865 dated 24.07.2017 filed on behalf of Sh. Salim Ismail Dola, the de-facto exporter of the seized counterfeit Gutkha in plastic pouches in contravention of the Section 114 (i) and Section 114AA of the Customs Act, 1962 and other allied acts read with Customs Broker Licencing Rules, 2013. 34.3 Sh. Sanjay Prabhakar in his defence reply dated 28.03.2018 pleaded that the he was approached by Sh. Shubham Garg and Mehmood @ Guddu for customs clearance for their export consignment containing Pan masala and household products. No information was given about the illegal Vimal gutkha or plastic pouches in the containers. It is wrong to say that he had any prior knowledge that in place of Pan masala & household products illegal Vimal Gutkha was planned to be exported. There is no evidence that he knowingly prepared documents for the export of illegal vimal gutkha in disguise of pan masala. The plea put fo....
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....urse of personal hearing requested to provide opportunity to cross-examine the seizing officers, the punch witnesses, the officers who have recorded the statements and the co-noticees may kindly be made available for the purpose of cross-examination to prove the innocence of the notice. The request of the party was examined and the same were found frivolous and hence rejected by the competent authority vide letter dated 05.04.2018. 34.8 From the discussion made herein above, it is evident that the Sh. Sanjay Prabhakar has failed to transact business in the Customs Station through an employee duly approved by the Deputy Commissioner of Customs or Assistant Commissioner o Customs, as the case may be; by employing unauthorised person for examination of the export consignment in the instant case. He has failed to advise his client to comply with the provisions of the Act and in the instant case, he has failed to bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. He has provided container for stuffing of the prohibited goods at unspecified address even though the exporter in the instant Case was not having any valid permission f....
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....ms Broker Firm M/s Sanjay Prabhakar has abetted smuggling of prohibited goods. Therefore, I hold that penalty is leviable upon Sh. Saniay Prabhakar under Section 114 (i) and Section 114AA of the Customs Act, 1962 for the act or omission as above committed by him." 4.4 From the order in original as well as the impugned order, it is evident that both the authorities have concluded that the appellant have failed to fulfill his obligation as Customs Brokers, in terms of Regulation 11 of the Customs Broker Licensing Regulations, 2013. For his failure to fulfill the obligation penalty has been imposed upon him under Section 114 (i) and 114AA of the Customs Act, 1962. Custom Broker Licencing Regulations are complete code in itself and provide for penal action upon the Custom Broker for failing to fulfill his obligations under the said regulation. For the alleged failure to comply with the said Regulation 11, penal proceedings could have been initiated under the relevant provisions of the Custom Broker Licencing Regulations, 2013, leading to revocation of the licence of broker along with the penalties as prescribed therein. Section 114 (i) and 114AA cannot be invoked for imposing penalty ....
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....te intend (mala fide). Section 114A of the Act also provides for imposition of penalty for furnishing incorrect or false declarations. Here also such declaration should be intentional with prior knowledge. Thus, as per the settled principles, penal provisions cannot be invoked for imposition of penalties under Sections 114 and 114AA of the Act. 8. Reliance on various case laws as submitted by the appellants are appropriate to support the above findings. Some of these decisions are as under :- (a) Sanco Trans Ltd. - 2017-TIOL-757-HC Mad. Cus. = 2017 (350) E.L.T. 521 (Mad.). (b) Sarosh Nagarwala & Others. - 2017-TIOL 233 CESTAT-Mum. = 2017 (358) E.L.T. 542 (Tribunal). (c) Skyline Shipping & Logistics. - 2010 (262) E.L.T. 985 (Tri.-Chen.) (d) Maheshwari Rocks (I) Pvt. Ltd. - 2010 (262) E.L.T. 574 (Tri.-Chen.) (e) Sekar & Sekar Process. - 2010 (262) E.L.T. 385 (Tri.-Chen.) (f) Kiran S. Dixit. - 2014 (301) E.L.T. 337 (Tri.-Bang.)" 4.5 The facts stated by the appellant in his statement have been corroborated by the statements of other co-noticees. Cross examination as sought by the appellant was also denied by the original authority. However, as is evident from para 34.7 ....
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....ts were admitted by him in his statement though retracted later on, at the first available opportunity. In case of K I Pavunny [1997 (90) E.L.T. 241 (S.C.)] Hon'ble Supreme Court has observed as follows : 20. The question then is : whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, Courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admi....
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....cts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base confiction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution. 26. In Naresh J. Sukhawani v. Union of India - 1996 (83) E.L.T. 258 (S.C.) = 1995 Supp. 4 SCC 663 a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Custo....