2024 (5) TMI 1228 - AT - Customs

Revocation of the license - forfeiture of security deposit - Penalty - Smuggling of gold declaring them as Diplomatic Cargo - Non-production of relevant documents - Refusal of cross-examination by the Commissioner - Violation of provisions of the CBLR, 2018 rules - Whether the notice was time barred - HELD THAT - In the present appeal, we are concerned with the allegations against the appellant as a Customs Broker who is responsible for clearing the above consignment of gold which has been smuggled by the syndicate. Time barred notice - As per the Regulation 17(1) of CBLR 2018, the notice is to be issued within 90 days from the date of receipt of the offence report. In the instant case, the offence report dated 8.10.2021 was issued by the Customs Preventive Commissionerate Cochin. The show-cause notice was issued on 28.12.2021 much before the 90 days time limit prescribed under the Regulations. The learned AR for the Revenue has rightly relied on the judgement of the Hon ble High Court of Bombay in the case of Principal Commr. of Cus. (General), Mumbai Versus Unison Clearing P. Ltd. 2018 (4) TMI 1053 - BOMBAY HIGH COURT to justify that each and every report needs not be mandatory and one such report is the inquiry report where it depends on the cooperation of the appellant and his timely submissions. Thus, we are of the opinion that the notice was not time barred as alleged by the Learned Counsel. Non-production of relevant documents - The Counsel was provided an opportunity not only on the documents received and even on the Order-in-Original dated 13.6.2023 which was issued at a later date. Therefore, we do not find any merit on the submission of non-production of documents as the learned counsel after providing all the documents was given an opportunity to make his submissions based on these documents which were received at a later date. Refusal of cross-examination - In the instant case I find that the said officers have not given statements and their conduct is in nowhere relevant to the case at hand viz; the question whether the CB has flouted any of the obligations cast upon them. Relying on the Supreme Court s decision in the case of Harinderpal Singh Shergill vs. Commissioner 2010 (10) TMI 1222 - SC ORDER , he states that the request for cross-examination of 7 personnel who have cleared the Bills of Entry only goes to prove that they want the proceedings to be delayed. The officers who have cleared the consignment have done so based on the declaration that it is a diplomatic cargo. Only on investigation and opening the consignment it was known that that gold was concealed in the cargo that was declared as diplomatic cargo. Therefore, we do not find any reason to disagree with the above observations of the Commissioner which appears to be only delay tactics. Violation of any of the provisions of the CBLR, 2018 - In respect of three Bills of Entry, the appellant had declared the consignor s details as Ministry of foreign affairs Abu Dhabi UAE wherein the airway bill clearly shows that the goods were consigned by private individuals and the invoices and packing list were also not filed with the Bills of Entry which clearly shows a mala fide intention of the appellant and collusion with the smuggling syndicate, thus, abetting in the smuggling of 136.828 kgs. of gold including the seized consignment of 30.245 kgs of gold. The appellant as a Customs Broker as per Regulation 10(d) was not only required to advise the client to comply with the provisions of the Act but also required to report such non-compliance to the Customs. As rightly argued by the Revenue, the appellant knew that Shri Sarith was no more with the UAE Consulate and did have knowledge that the consignor was not the Ministry of Foreign Affairs but neither advised the client nor apprised the department which is nothing but violation of Regulation 10(d) of the CBLR, 2018. The appellant was responsible for allowing smuggling of gold concealed in the personal effects declared as Diplomatic Cargo. He failed to guide his client and to alert Customs and instead ended up facilitating the smuggling of gold, thus, his actions of omission and commission violates Regulation 10(d) and 10(e). Thus, it is clear that appellant has violated Regulation 10(d), 10(n) and 10(e) of CBLR, 2018. In the instant case, the very same Regulations have been violated and the trust reposed on the appellant has been mis-utilised for the benefit of few. Hence, we do not find any reason to interfere with the impugned order. Thus, we uphold the impugned order and dismiss the appeal.

Summary

Issues Involved:
1. Time-barred notice.
2. Non-production of relevant documents.
3. Refusal of cross-examination.
4. Violation of provisions of the Customs Broker Licensing Regulations (CBLR), 2018.

Summary:

1. Time-barred notice:

Regulation 17(1) of CBLR, 2018 mandates that a notice must be issued within 90 days from the date of receipt of an offence report. In this case, the offence report was dated 08.10.2021, and the show-cause notice was issued on 28.12.2021, within the prescribed time limit. The appellant's argument regarding the delay in the inquiry report submission was dismissed, as the notice itself was not time-barred.

2. Non-production of relevant documents:

The appellant claimed that the offence report and other relied upon documents were not provided, which hindered their ability to counter the allegations. However, the tribunal noted that the required documents, including the offence report, were eventually provided to the appellant, and they were given an opportunity to make submissions based on these documents. Thus, the claim of non-production of documents was found to be without merit.

3. Refusal of cross-examination:

The appellant requested cross-examination of Customs Officers and staff who cleared the consignment. The Commissioner found this request unnecessary as these officers had no direct relevance to the case. The tribunal upheld this decision, noting that the request appeared to be a delay tactic.

4. Violation of provisions of the CBLR, 2018:

The appellant was found to have violated several provisions of the CBLR, 2018, including Regulation 10(d), 10(e), and 10(n). The appellant failed to verify the authenticity of documents and mis-declared consignor details, facilitating the smuggling of gold. The tribunal noted that the appellant's actions demonstrated a lack of due diligence and compliance with the regulations, justifying the revocation of the license, forfeiture of the security deposit, and imposition of a penalty.

Conclusion:

The tribunal upheld the impugned order, dismissing the appeal and confirming the revocation of the license, forfeiture of the security deposit, and imposition of a penalty on the appellant.