2026 (4) TMI 81

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....0/ - ST/55343/2023 M/s. Jet Lite (India) Ltd. 02/202324 dated 30.05.2023 23/202223 dated 03.06.2022 Rs.50,000/- 2. Briefly stated, facts relevant for the present adjudication are as follows: 2.1 During Post Clearance Audit (PCA) of the import consignments of the above named importers, it was observed that they had mis-declared the goods for getting those cleared while availing the benefit of either nil BCD under Sl. No. 544 of Notification No.50/2017-Cus. dated 30.06.2017 and IGST @5% and 18% under S.No.245 of Schedule-I and S.No.373 of Schedule-III of IGST Notification No.1/2017-Integrated Tax (Rate), dated 28.06.2017 (in Appeal No. 55343 and 55367/2023) to take advantage of lower rate of IGST @ 5% thereby resulting into short levy. 2.2 It is also alleged that the primary responsibility was of the Customs Broker (CB) to facilitate the importer in filing the actual information to the department in respect of the import of the items along with correct duty payment. However, the appellant-CHA never responded in the matter to the department. Alleging that the Customs Broker had failed to fulfill their basic responsibility that it appeared to be liable to be pen....

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..... Vs. Commissioner of Customs (Import), Mumbai-I reported as 2015 (316) ELT 257 (Tri-Mumbai) (ii) Gajanan B. Sudrik Vs. Commissioner of Customs (EP), Mumbai reported as 2014 (304) ELT 159 (Tri-Mumbai) (iii) Amit Rajkumar Singhania Vs. Commissioner reported as 2019 (368) E.L.T. A348 (Tri.Mumbai) 4.1 Learned counsel further submitted that the impugned show cause notice was invalid and the impugned order is infructuous since NCLT had already approved the resolution plan of the importers. Following decisions are relied upon: (i) Ghanashyam Mishra and Sons Private Limited Vs. Edelweiss Asset Reconstruction Company Limited and Ors. in Civil Appeal No. 8129 of 2019. (ii) Sree Meetalika Limited Vs. Additional Director General reported and 23/DHC/001118. (iii) Emco Ltd. Vs. Assistant Commissioner reported as (2024) 17 CENTAX 344 (Telangana) With these submissions, the appeal is prayed to be allowed. 5. At the outset, learned Departmental Representative has reiterated the discussions and findings given in the impugned. It is additionally submitted that as per Regulation 10(d) of the Customs Brokers Licensing Regulations (CBLR), 2018, a Cu....

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.... for such contravention of failure, shall be liable to penalty not exceeding four lakh rupees. 8. The perusal reveals that the penalty under this provision is imposable in case any provision of Customs Act, 1962 is violated. The allegation against the appellant is that he being the CHA has failed to inform the importer that adopting different classifications and quoting different rates of duty for the same items during the same period of time is against the statute. Thus it has been alleged that the appellant has violated clause (d) and (e) of Regulation 10 of Customs Broker Licensing Regulations, 2018. 9. Apparently and admittedly the only act done by the appellant CHA is that he has filed the Bills of Entry on behalf the importers, M/s. Jet Airway India Ltd. and M/s. Jet Light India Ltd. when they imported Parts of Aircrafts.It is not allegation of the department that appellant/CHA advised the Customs Tariff Heading/CTH of the impugned imported goods to both those importers. Apparently, appellant/CHA is not a technical person to decide the nature of technical engineering products as that of Aircraft Parts. As per section 46(4) of the Customs Act, 1962 the onus to give a tru....

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....h the different and wrong CTH for the same products during the same point of time have not been at all established on record hence are held to be the findings merely on the basis of presumptions and assumptions and without any evidence. The Adjudicating Authority while imposing penalty on the appellant has observed violation of Regulation 10 of Customs Broker Licensing Regulations (CBLR, 2018) but admittedly no proceedings ever initiated against the appellant under those Regulations. There is no evidence on record about violation of 10(d) and 10(e) as has been held in the impugned order. The findings are therefore held to be wrong without any basis for the same. 12. It is also an apparent fact that the impugned order has adjudicated five issues, four were pertaining to the importer and the fifth one is with respect to the penalty under Section 117 on the CHA/appellant. Four of the issues have been decided against the importer and the importer has not come forward to challenge the findings. This act corroborates the sole involvement of importers themselves. Irrespective CTH was rightly or wrongly mentioned but the CHA/appellant is held to have no role in mentioning a wrong CTH in....