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2025 (1) TMI 796
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....ustoms Broker License No. 02/2011. It was noticed by the department that the appellant, acting as an importer, had imported a consignment, vide Bill of Entry No.5008577 dt.11.03.2023, where the goods were declared as 'Dried Dates Grade-3', whereas on examination, it was revealed that 'Areca Nut' was also concealed among the bags of 'dried dates'. Therefore, in view of the said mis-declaration and follow up investigation, department felt that there was an attempt to smuggle which attracted various penal provisions including confiscation of the contravening goods for which a SCN was issued to the appellant, acting as an importer for the said consignment. However, since in this case while the importer was the appellant, acting as importer, the Custom Broker for the said import was also the appellant, acting as customs broker and therefore, separate proceeding was contemplated under CBLR, 2018 against them. After due process, a SCN dt.13.03.2024 was issued to the appellant proposing, inter alia, revocation of license in terms of regulation 14. The SCN was adjudicated by the Commissioner vide Order dt.16.08.2024. The appellants are in appeal against the said impugned order. 3. Learne....
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....o 12PM, it was not possible for them to complete the other formalities on the same day. The export containers were loaded on 20.02.2023 and all the reports and the Bill of Lading copy was forwarded to the Phytosanitary department on 21.02.2023 and they issued the certificate on 22.02.2023. The supplier vide letter dt.21.08.2023, therefore, clarified that even though the samples were tested prior to shipment of containers, due to continuous holidays the report was issued subsequently. 4. He also clarified that the content of the letter dt.21.08.2023 has never been disputed by the department as mentioned at Para 31 of SCN dt.06.03.2023 and the department has also accepted the submission of the supplier as well as the submission of the importer that no payment was made in respect of Bill of Entry No.5008577 dt.11.03.2023. He further submits that department was at liberty to crosscheck and conduct overseas investigation if they had any doubt about the genuineness of the averment made by the overseas supplier or about the authenticity of the documents itself. He has further submitted that the alleged discrepancy in the dates of invoice and purchase order as well as phytosanitary cert....
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....r regulations 16(1), 16(2) & 17(1) of CBLR, 2018 read with CBEC Circular No. 09/2010 dt.08.04.2010. Therefore, on this count itself, the order is required to be set aside. He has relied on various judgments as under in support of this contention:- a) Leo Cargo Service Vs CC (Airport & Gen.), New Delhi [2022 (382) ELT 30 (Del)] b) Pragati Overseas Agency Vs CC (Airport & Admn), Kolkata [2018 (363) ELT 169 (Tri-Kolkata)] c) HSN Shipping Vs CC, Chennai [2020 (372) ELT 689 (Madras)] d) CC (Gen.) Vs Atharva Global Logistics [2016 (338) ELT 682 (Del)] e) Rishad Shipping & Clearing Agency Ltd Vs CCE & CGS, Indore [2022 (1) ELT 315 - Tribunal Delhi] f) KTR Logistics Pvt Ltd Vs CC, Chennai [2020 (371) ELT 685 (Mad)] 8. He further clarifies that even going by the department, the mandatory nature of time line stipulated under CBLR, 2018 has already been accepted by the Principal Commissioner of Customs during the proceedings and therefore, there should not be any doubt regarding its mandatory compliance and since in this case this time line has not been adhered to, the impugned order is required to be set aside. He further states that e....
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....ion of license of appellant, as custom broker and imposition of penalty on appellant, as importer will not lead to double jeopardy relying on the judgment of Hon'ble Madhya Pradesh High Court in the case of Thameem Ansari Vs State of Madhya Pradesh [2020 (3) TMI 900 - Madhya Pradesh HC], wherein, it was held that when there are two distinct offences made up of different ingredients, embargo under Article 20(2) or Section 26 of General Clauses Act, 1897 has no application, though the offences may have overlapping features. 12. Heard both sides and perused the records. 13. In the present appeal, the action under CBLR has been proposed against the appellant in their capacity as custom broker, who was engaged in clearing Bills of Entry for M/s Rich Mark Shipping & Logistics Pvt Ltd, in the capacity as importer. It is an admitted fact that on examination of the container there was gross mis-declaration vis-à-vis in the Bills of Entry filed by the appellant on behalf of the importer. It is also an admitted position that based on investigations conducted by the department, one SCN was issued to the appellant in their capacity as importer for the alleged violations under the C....
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....er proceeding was initiated against the appellant under CBLR, 2018. The facts, in brief, are that a note dt.21.03.2023 was sent to Custom Broker Section, Customs House, Visakhapatnam informing about incident of illegal import of 'Areca Nuts' in the guise of 'Dried Dates' by the appellant for further necessary action as deemed fit and the Principal Commissioner of Customs on being satisfied immediately suspended the customs broker license vide Order dt.24.03.2023. Subsequently, in accordance with the procedure in terms of regulation 16(2) of CBLR an opportunity was extended to the appellant for personal hearing. However, the appellant neither appeared nor sent any submissions and instead sought certain postponement. However, keeping in view the prescribed time schedule, which is required to be followed with respect to suspension of license as per regulation 16(2), an exparte continuation of suspension order was issued on 11.04.2023. Being aggrieved, the appellant went to the Hon'ble High Court of Andhra Pradesh and in terms of the order, another date of personal hearing was fixed on 10.08.2023 and after hearing the case, continuation of suspension order was issued on 06.10.2023. ....
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....nly two violations against the appellant or in other words, they have not been found to have violated any other obligations vis-à-vis the consignment in respect of which they acted as a custom broker. 19. There is a provision of revocation of license or imposition of penalty under Section 14 of CBLR wherein the Principal Commissioner or Commissioner of Customs may, subject to the provisions of regulation 17, revoke the license of a customs broker and order for forfeiture of part or whole of security, on any of the following grounds:- a) failure to comply with any of the conditions of the bond executed by him under regulation 8; b) failure to comply with any of the provisions of these regulations, within his jurisdiction or anywhere else; c) commits any misconduct, whether within his jurisdiction or anywhere else which in the opinion of the Principal Commissioner or Commissioner of Customs renders him unfit to transact any business in the Customs Station; d) adjudicated as an insolvent; e) of unsound mind; and f) convicted by a competent court for an offence involving moral turpitude or otherwise. 20. Similarly, a li....
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....has examined the note dt.21.03.2023 and observed that there were no charges framed against the appellant in the said note and therefore, he has taken the investigation report received by the customs broker section from SIIB on 27.02.2024 as the date of receipt of offence report and therefore, held that there has not been any delay in issuing the notice dt.13.03.2024. 24. In this regard, we have perused the suspension order dt.11.04.2023 vide which Commissioner, in exercise of his power under Section 16(2), has continued the suspension averring that he was fully satisfied that customs broker has, prima facie, not fulfilled their obligation as laid down in regulations 10(d) & 10(e) of CBLR. However, as cited supra, in Para 7 of the impugned order, it is clearly indicated that suspension order dt.24.03.2023 was issued after being fully satisfied that the customs broker has, prima facie, not fulfilled their obligation as laid down in regulations 10(d) & 10(e). Therefore, the question is while the Adjudicating Authority feels that there is nothing in the offence report to consider it as "offence report" for the purpose of regulation 17(1), it is not forthcoming as to how within two d....
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....eveled. Since the violation of regulations 10(d) & 10(e) was, prima facie, found to be invokable in the light of note dt.21.03.2023 itself, which gave details of case against the appellant, as importer, and no further charges or violation could be fastened on them as customs broker, the assertion of department that it would not constitute an "offence report" is not correct. Incidentally, this "investigation report" is not a relied upon document to the SCN for calculating time limit. It is also felt that there is no provision for "provisional suspension" in CBLR, 2018 and only a suspension issued under regulation 16(1) can be further extended under regulation 16(2) of CBLR. It is also to be noted that in terms of provisio to regulation 16(2), further procedure is to be regulated by regulation 17, which, ultimately, would culminate in either suspension order getting revoked or license getting revoked. 26. We have also perused the case laws relied upon by the appellant. In the case of HSN Shipping Vs CC, Chennai (supra), Hon'ble High Court relied upon the decision of Division Bench of High Court in the case of Santon Shipping Services Vs CC, found that the SCN issued beyond 90 days....
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.... High Courts has been considered in M/s. Atma Steels P. Ltd. and Others v. Collector of Central Excise, Chandigarh reported in 1984 (17) E.L.T. 331 wherein the Larger Bench consisting of five Members held that, in view of its All India jurisdiction and peculiar features, the Tribunal cannot be held bound to the view of any one of the High Courts, but has the judicial freedom, to consider the conflicting views, reflected by different High Courts, and adopt the one considered more appropriate to the facts of a given case before the Tribunal. The Tribunal also indicated that this should be so, irrespective of the fact whether one particular assessee was within the jurisdiction of a specified High Court or the original adjudicating authority was located there. The judgment of the Apex Court in the case of M/s. East India Commercial Co. Ltd. v. Collector of Customs, Calcutta reported in 1983 (13) E.L.T. 1342 (S.C.) was brought to the notice of the Larger Bench, but, was not adverted to sufficiently in the course of discussion. In the East India Commercial Co. case, one of the questions for consideration was whether the interpretation given by the Calcutta High Court to Section 167 of th....
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....light of the decision of Supreme Court in the East India Commercial Company case i.e. where the jurisdictional High Court has taken a particular view on interpretation or proposition of law, that view has to be followed in cases within such jurisdiction. If the jurisdictional High Court has not expressed any view in regard to the subject matter and there is conflict of views among other High Courts, then the Tribunal will be free to formulate its own view in the light of Atma Steels (P.) Ltd. case; however, there is a decision of only one High Court in regard to disputed interpretation or proposition of law, the Tribunal is bound to follow that order since it is not at liberty to disregard the solitary High Court decision." 27. Therefore, relying on the ratio of Rishad Shipping & Clearing Agency Ltd Vs CCE & CGS, Indore (supra), we note that since no decision on this issue from the jurisdictional High Court has been brought to our notice and that there are conflicting decisions of Hon'ble High Courts of Delhi, Madras, Calcutta & Bombay, this Tribunal will be free to formulate its own decision. Since in this case we have already found that department itself was describing the tim....
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....ould not get an opportunity to defend his case. For example, if it was regarding wrong classification or wrong valuation, there is nothing on record that he has advised anything to the contrary. The documents where mismatches have been noticed are in relation to the invoice dates, purchase order and phytosanitary certificate, etc., and such inconsistencies, even though explained later by the supplier, would not have been a cause for treating wrong advice to the client in relation to any of the provisions of the Act. We also observe that there is no allegation that the customs broker had submitted false or forged documents for clearance of the goods imported under Bill of Entry and that documents submitted by him were tampered with or suppressed by the customs broker before presentation to the customs authorities and there is nothing on record to show that the appellant, in their capacity as customs broker, were privy to the activity of alleged mis-declaration by the appellant, in the capacity of importer, except for a statement dt.17.08.2023 of Shri K.V. Sampath Kumar, Managing Director of appellant company, wherein, he has, inter alia, accepted his failure to comply with the provi....
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.... that they had approached the supplier after noticing the discrepancy found after opening of the sealed container. Department has not disputed that these emails are fake and have only said that the letter dt.21.08.2023 appears to be an afterthought. Therefore, this would support the submission of the appellant that they had not only exercised due diligence but were also trying to ascertain the reasons for the discrepancy in relation to import made by the appellant/importer, where they were acting as customs broker also. Therefore, at the first opportunity itself the customs broker has in fact, tried to ascertain the correctness of information and had filed the Bill of Entry based on all the documents which were otherwise found to be genuine. This, in itself, would suffice that they had exercised reasonable due diligence. It is also to be noted that out of 17 obligations, the department would charge only on two counts i.e., 10(d) & 10(e) and therefore, in respect of other obligations, they were not found to be noncompliant. Thus, to invoke 10(e) in this case without substantial evidence directly implicating them in positive manner in smuggling of goods, is not tenable. 30. Revenu....