2023 (11) TMI 319 - AT - Customs

Revocation of appellant s customs broker license - forfeiture of security deposit - imposition of penalty - weight of pan masala mentioned on invoice cum packing list was much higher than the actual weight thereof found during examination - an opportunity of cross-examination not provided - no finding has been given with respect to the submissions made by the appellant - violation of principles of natural justice - violation of Regulations 10(a), 10(b), 10(d) 10(e), 10(j), 10(k) and 10(q) of CBLR, 2018. Violation of 10(a) of CBLR, 2018 - HELD THAT - It was obligatory for the appellant to obtain an authorization even from the individuals by whom he is for the time being is employed as customs broker. Appellant has failed to produce any such authorization from exporter M/s. Batra Enterprises mentioning Shri Pran Shanker Jha, an employee of their freight forwarder (M/s. Toshnek International) to be the authorized representative not only for the exporter but also for the customs house agent. Absence of such authorization is more than sufficient to prove the violation of 10(a) of CBLR, 2018. Violation of 10(b) of CBLR, 2018 - HELD THAT - The transactions of business in relation to customs house is the idea behind Regulation 10(b). Transaction of business in customs station in case of exports is filing of shipping bills along with the invoice, packing list, checklist and all other requisite documents. In today s era of virtual transactions/online processings, physical presence in customs house for transacting the business is not required. However, the intent of the provision remains the same that business has not to be transacted by an unauthorized person i.e. Shri Pran Shanker Jha that too to the notice and knowledge of the appellant. Apparently and admittedly the customs house related transaction of business has been done by an unauthorized person. The same is sufficient to confirm violation of 10(b) of CBLR, 2018. Violation of Regulation 10(d) of CBLR, 2018 - HELD THAT - The appellant had no means to verify item wise quantity or weight of the goods and in fact as, customs broker, he is not required to do so. With these findings, the penalty as was imposed upon the appellant under Section 114 (iii) was also set aside. Once there was no knowledge with the appellant about the alleged mis- declaration, once it was a case of clerical mistake and over sightedness while preparing invoice/packing list no question arises for informing anything to the department. Violation of 10(d) therefore is not sustainable. Violation of Regulation 10(e) of CBLR, 2018 - HELD THAT - The mistake has already been acknowledged by the exporter to be a clerical mistake at the end of his Accountant namely, Ms. Aakansha Mishra. The same cannot be attributed to the appellant - these submissions are insufficient to justify the two packing lists for the same shipment. Irrespective the appellant had no mens rea to support the exporter for availing inadmissible export incentive but the fact remains is that once there cannot be two different documents as that of packing list with different description of the goods, it was the incumbent duty of the customs house agent to diligently check the veracity about the same. There is nothing on record about any such exercise of due diligence by the appellant. Hence, there are no infirmity with the violation of 10(e) has been confirmed against the appellant. Violation of Regulation 10(j), 10(k) and 10(q) of CBLR, 2018 - HELD THAT - There is no allegation in the show cause notice that up to date records were not being maintained by the appellant - With respect to his cooperation with the customs authority, it is coming apparent that he only ensured the presence of Shri Saurabh Batra, the partner of the exporter, their employee including Ms. Aakansha Mishra and the freight forwarder i.e. Shri Pran Shanker Jha. He got his authorized representatives Shri Prasanta Kumar Samanta, the F-Card holder and Shri Om Prakash Kashyap, the G Card holder examined not once but on several occasions, Hence, violation of regulation 10(j), 10(k) and 10(q) has wrongly been confirmed. Though the appellant is held guilty of the violations under Regulation 10(a), 10(b) and 10(e) but these are not so grave as to justify the revocation of the customs license. These violations are observed to be the consequence of negligence on part of the appellant custom broker. Depriving him of his livelihood is held to be disproportionate in the light of given findings - the violations as far as Regulation 10(d), 10(j), 10(k) and 10(q) of CBLR, 2018 are concerned are not confirmed - the ends of justice would be met if the order of forfeiting security deposit and imposing penalty is upheld and as far as the order of revocation of license is concerned, the same be set aside. Appeal allowed in part.

Summary

Issues Involved:
1. Violation of Regulation 10(a) of Customs Brokers Licensing Regulations, 2018 (CBLR, 2018)
2. Violation of Regulation 10(b) of CBLR, 2018
3. Violation of Regulation 10(d) of CBLR, 2018
4. Violation of Regulation 10(e) of CBLR, 2018
5. Violation of Regulation 10(j), 10(k), and 10(q) of CBLR, 2018

Summary:

Issue 1: Violation of Regulation 10(a) of CBLR, 2018
The appellant failed to produce any authorization from the exporter, M/s. Batra Enterprises, for Shri Pran Shanker Jha, an employee of their freight forwarder, to act as an authorized representative. This absence of authorization was deemed sufficient to prove the violation of Regulation 10(a).

Issue 2: Violation of Regulation 10(b) of CBLR, 2018
The appellant allowed an unauthorized person, Shri Pran Shanker Jha, to file shipping bills from outside the customs station. The regulation mandates that business related to customs must be transacted either personally or through an authorized employee approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs. This unauthorized transaction confirmed the violation of Regulation 10(b).

Issue 3: Violation of Regulation 10(d) of CBLR, 2018
The appellant was not found to have knowledge of any intentional changes in the documents forwarded by the exporter. The mistake in the invoice cum packing list was acknowledged as a clerical error by the exporter's staff. The Tribunal held that the appellant had no means to verify the quantity or weight of the goods sealed by the exporter. Therefore, the violation of Regulation 10(d) was not sustainable.

Issue 4: Violation of Regulation 10(e) of CBLR, 2018
The appellant did not exercise due diligence to ascertain the correctness of the information, as evidenced by the existence of two different sets of invoices. Despite the clerical error acknowledged by the exporter, the appellant failed to verify the discrepancy. Thus, the Tribunal confirmed the violation of Regulation 10(e).

Issue 5: Violation of Regulation 10(j), 10(k), and 10(q) of CBLR, 2018
The Tribunal found no evidence that the appellant refused access to, concealed, or destroyed any documents. The appellant maintained up-to-date records and cooperated with the customs authorities. Hence, the violations of Regulations 10(j), 10(k), and 10(q) were not substantiated.

Conclusion:
The Tribunal set aside the findings related to violations of Regulations 10(d), 10(j), 10(k), and 10(q). However, it confirmed the violations of Regulations 10(a), 10(b), and 10(e). The Tribunal held that while the appellant was guilty of certain violations, these were not grave enough to justify the revocation of the customs license. Instead, the Tribunal upheld the order of forfeiting the security deposit and imposing a penalty but set aside the order of revocation of the license. The appeal was partly allowed.