TaxTMI 
TaxTMI 
2025 (6) TMI 375
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.... Limited Trip Communications at the instance of one Ashok Kumar Agarwal. These consignments were cleared by the officers of customs. 3. A show cause notice dated 20.05.2013 was issued to the appellant alleging violation of regulation 13 (d) and (e) of the Customs House Agents, Licensing Regulations, 2004 the Licensing Regulations for a reason that the appellant accepted the IEC of an import firm mentioned by Ashok Kumar Agarwal knowing fully well that he was not a Director of Trips Communications. The show cause notice also alleges that the appellant abetted and dealt with goods which it knew or had reasons to believe were liable to confiscation under the Customs Act and, therefore, was liable to penalty under sections 112 and 114AA of the Customs Act. The relevant paragraph 13 of the show cause notice is reproduced below : "13. The CHA firm M/s. G.N.D. Cargo Movers (CHA No. ABRPN3905B CH001) have knowingly and deliberately abetted Shri Ashok Kumar Agarwal and his accomplices S/Shri Manoj Kumar Shukla, Amit Kumar and Tripurari Nath, for imports of the impugned goods in violation of the various provisions of the law as quoted above. The CHA firm has failed in their obligati....
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.... facts of the case and the submissions, oral as well as written made on behalf of the Appellant, I find that the appellant have knowingly and deliberately abetted Shri Ashok Kumar Agarwal and his accomplices Shri Manoj Kumar Shukla, Amit Kumar and Tripurari Nath, for imports of the impugned goods in violation of the various provisions of the law as quoted above. The Appellant has failed in their obligation under Customs House Agents Licensing Regulations, 2004, particularly in regard to Regulation 13(d) & (e), of the said Rule which requires the CHA to advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Custom and further exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. In this case the CHA firm knowingly accepted IEC of import firm mentioned from Shri Ashok Kumar Agarwal and his accomplices knowingly fully well that he was not the director of M/s. TCPL and thereby abetted the act of mis-declaration of the bonafide of the im....
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....owing submissions: (i) The appellant had violated the provisions of Licensing Regulations and IEC holder cannot sublet his IEC to other persons; (ii) The appellant in self-confessional statements recorded under section 108 of the Customs Act stated the modus operandai and the said statement has not been retracted; and (iii) The statements recorded before the customs officers are admissible. 9. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 10. In the first instance, it clearly transpires that the Additional Commissioner and the Commissioner (Appeals) have merely reproduced the allegations contained in the show cause notice for confirming the penalties imposed upon the appellant. It was incumbent upon the Additional Commissioner and the Commissioner (Appeals) to have independently examined the issues and record findings. 11. The order dated 30.01.2017 passed by the Commissioner in proceedings initiated under the provisions of the Licensing Regulations against the appellant was assailed by the appellant in Customs Appeal No. 50444 of 2017 and by a decision dated 31....
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....ssioner (Appeals) have held that the appellant accepted the IEC of a firm mentioned by Ashok Kumar Agarwal fully knowing that Ashok Kumar Agarwal was not the Director of Trip Communications. The Tribunal in Gopal Agarwal observed that since there is no bar under the Customs Act to import goods in the name of IEC holder and there is no offence under the Customs Act for lending IEC code, penalty cannot be imposed. The relevant portion of the order is reproduced below: "6. In this case, it is not in dispute that imports have been made in the name of IEC holder. Bills of entries have also been filed in the name of IEC holder. Therefore, as per the decision of Nazir-ur- rahman (supra), Imports have been made in the name of IEC holder. Further, the appellants has produced the IEC holder before the Revenue authorities and there is no bar for imports under the Customs Act to import the goods in the name of IEC holder and there is no offence under the Customs Act for lending of IEC code. In these circumstances, relying on the decision of Atul D. Sonpal (supra), I hold that the appellant has not violated the provisions of Customs Act and there is no allegation of any mis-declaration, misre....
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....e learned Counsel is that though this judgment was rendered in the context of penalty under Rule 173Q of the Central Excise Rules, the ruling contained therein would equally apply to imposition of penalty under Section 112 of the Customs Act. ***** 15. It is also to be noted that in the absence of specific charges against the appellants in terms of specific sub-sections of Section 112, and also by imposing penalties under the relevant sub-section, authorities have rendered it difficult to understand the charge against each of the appellants. The Hon'ble Supreme Court has strongly dis-approved of such generalized proceedings in the aforesaid judgment in the case of Amrit Foods." ( emphasis supplied ) 18. In Aadil Majeed, the Tribunal also observed as follows: "15. Further, on perusal of record, the show cause notice is vague as no particular provisions of Section 111 of the Customs Act for confiscation of the gold and no provisions of Section 112 of the Customs Act for imposing penalty has been brought on notice. Therefore, the show cause notice is also vague as held by the Hon'ble Apex Court in the case of Amrit Foods (supra). Further, in the case of Max G.B. Ltd. (supra),....
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....oving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of sub-section (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of sub-section (1) of these two Acts shall apply to any proceedings under the Central Excise Act or the Customs Act as they apply in relation to proceedings before a Court. What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the interests of justice. Once this determination regarding admissibility of the statement of a witness is made by the adjudicating authority, the statement will ....