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2019 (12) TMI 482 - AT - CustomsRevocation of Custom Broker (CB) License - forfeiture of security deposit - it is alleged that Appellants had in the B/E filed intentionally and deliberately misdeclared the good to circumvent import policy restrictions and requirement of license as per Arms Rule, 2016 - alleged involvement of Appellant in the said fraudulent import of Blank Firing Guns which is restricted under the Arm Rules, 2016 - HELD THAT - The sole evidence relied in the impugned order, against the appellant is the statement dated 19.06.2017 of Shri Rajesh Kumar Goswami, wherein he has stated that their Custom Broker had suggested to declare the goods as Metal Toy Guns - Apart from the above in the impugned order, nothing else relied against the appellants. As have been stated in para 4.5, the said statement was relied upon by the Commissioner, has been retracted by Shri Rajesh Kumar Goswami before ACMM, stating that the statement was not voluntary and has been taken by the Customs Officer under duress and by giving false promise and false information. It is also evident that issue in the present case can more appropriately be described as that of mis classification and not mis declaration as alleged in the proceedings initiated against the appellants. There is no denial of the fact that the goods were physically examined by the Customs Officer and samples too were drawn from the consignment, sent to appropriate lab for testing by the Custom Officers. It was only after satisfying themselves and discussions at all levels upto Commissioner the goods were held classifiable under Heading 9503. When the Custom Officers themselves have after physically examining the goods concluded that the goods were classifiable under Heading 9503, then can the Custom Broker be accused of mis-declaring the goods and their classification. When Custom Officers who are expert in the matter of classification themselves failed to determine the correct classification of goods after physically examining it and considering the issue for substantial time then can an Custom Broker be accused of failing to determine the correct classification on the basis of description given by the importer and in the import documents. Admittedly certificate as required in terms of ITC (HS) Import Policy, Condition No 2, for the import of goods under CTH 9503 was not produced by the Importer/ Custom Broker, but what stopped/ prevented Custom Officers from insisting on the same before allowing the clearance. Can this failure of the Custom Officers be also the reason for accusing the Custom Broker of his failure to comply with the policy requirements? - HELD THAT - There are no discussion to show how the Appellants have failed to comply with the requirements of Regulations 11(d) and 11(e). He had advised the client as per his understanding of the law and procedure, and had exercised due diligence accordingly. In our view the only additional advice that he could have rendered in respect of the consignments imported and cleared under CTH 9503 could have been for complying with the requirements of ITC (HS) Import Policy, Condition No 2 for import of goods under that heading. In case the said certificate was produced or insisted upon before clearance of the goods the entire case of misdeclaration/misclassification could have been averted - revocation of licence for that would be too harsh a punishment for the same when Custom officers also have not insisted for the same. The forfeiture of security deposit for the same would have been adequate taking into account the fact that goods sought to be cleared, were blank guns which could have been modified into lethal weapons jeopardizing the National Security and the security of individuals. The appeal filed by the appellant is allowed to the extent of setting aside the order of revocation of Custom Broker License of the Appellants - appeal allowed in part.
Issues Involved:
1. Revocation of Custom Broker License under CBLR, 2013. 2. Suspension of Custom Broker License. 3. Alleged mis-declaration and mis-classification of imported goods. 4. Compliance with Regulations 11(d) and 11(e) of the CBLR, 2013. 5. Procedural delays in the inquiry process. Issue-wise Detailed Analysis: 1. Revocation of Custom Broker License under CBLR, 2013: The Commissioner of Customs (General) Mumbai revoked the Custom Broker (CB) license of the appellant under Regulation 20(7) of CBLR, 2013 (now Regulation 17(7) of CBLR, 2018) and ordered the forfeiture of the security deposit in full. The revocation was based on the allegation that the appellant had intentionally mis-declared the imported goods, "Blank Firing Guns," as "Metal Toys" to circumvent import policy restrictions and licensing requirements under the Arms Rule, 2016. The Commissioner concluded that the CB had failed to fulfill their obligations under Regulation 11(d) and 11(e) of CBLR, 2013 (now Regulation 10(d) and 10(e) of CBLR, 2018). 2. Suspension of Custom Broker License: The CB license was initially suspended based on an offense report dated 22.06.2017, indicating that the appellant had processed the import clearance of "Blank Firing Guns" declared as "Metal Toys." The suspension was continued pending inquiry, and this order of suspension was appealed before CESTAT. The appeal against the suspension became infructuous as the proceedings concluded with the revocation of the license. 3. Alleged Mis-declaration and Mis-classification of Imported Goods: The appellant was accused of mis-declaring "Blank Firing Guns" as "Metal Toy Guns" and classifying them under CTH-9503 instead of CTH-9303. The investigation revealed that the appellant had filed multiple Bills of Entry (B/E) for similar goods in the past. The appellant contended that the goods were declared based on the information provided by the importer and that the classification was determined by the proper officer of Customs after due examination. The appellant argued that they could not be held responsible for the failure of the proper officer to determine the correct classification. 4. Compliance with Regulations 11(d) and 11(e) of the CBLR, 2013: The appellant was charged with failing to advise the client to comply with the provisions of the Act and failing to exercise due diligence to ascertain the correctness of information imparted to the client. The Commissioner held that the CB did not advise the importer about the proper declaration and classification of the goods and failed to inform Customs authorities about non-compliance. The appellant argued that they had exercised due diligence and advised the client as per their understanding of the law and procedure. The Tribunal found that the allegations of non-compliance with Regulations 11(d) and 11(e) were not substantiated in the impugned order. 5. Procedural Delays in the Inquiry Process: The appellant argued that the proceedings for revocation of the license took 625 days to conclude, exceeding the 270-day period stipulated under the Custom Broker Licensing Regulations. The Tribunal acknowledged the delay but referred to judicial precedents indicating that the time limits in the regulations are directory, not mandatory. The Tribunal emphasized that the delay should be justified by recording reasons for non-adherence to the timeline. Conclusion: The Tribunal set aside the order of revocation of the CB license, finding that the sole evidence relied upon was a retracted statement that was not tested for voluntariness. The Tribunal also noted that the issue was more appropriately one of mis-classification rather than mis-declaration, as the goods were examined and classified by Customs officers. The Tribunal found that the appellant had exercised due diligence and advised the client as per their understanding. The appeal against the revocation was partly allowed, while the appeal against the suspension was dismissed as infructuous.
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