2021 (12) TMI 631 - AT - Customs

Suspension of Customs Broker License - allegation of forgery and manipulation of documents committed by the Appellant - regulation 16(1) r.w. 16(2) of the CBLR 2018 - HELD THAT - The mismatch of date of shipment as per internet tracking system of the impugned consignment, and the Bill of lading date, brought the conflict before the Customs Authorities. The statements of other witnesses also corroborated the same including the shipment tracking record, which proved beyond doubt that even the empty containers were not handed over to the Exporter by 26.04.2021, i.e. the date of Notification restricting watermelon seeds, which was in the knowledge of the CB - emails dated 01.06.2021 sent by CB to the importer states that we requested everyone to ensure that the tracking of the shipping line is before 26.04.2021. Also, the reply to the shipping line for the e mail dated 01.06.2021 was forwarded on 10.07.2021, well after the seizure was made. Thus, even when the situation was doubtful, the appellant CB chose to file the BOE not as per the Revised Notification, referring the said goods under restricted category. The revenue has relied heavily on the content or the information available on website of shipping lines, which may be erroneous and needs investigation. However, the documents like proforma invoice, bill of lading and the documents like certificates of origin etc., fact of payment before shipment indicates that the submissions of the appellant cannot be brushed aside. It s not proved that such documents are fabricated or manipulated. It is very difficult to deny the authenticity of the certificates issued by a sovereign Government in the absence of evidence. No such allegation of fabrication of such documents is made. Learned authorised representative for the revenue avers that the investigation is still on. One more evidence that the revenue relies upon is the initial statement of the importer, wherein he is alleged to have stated that he has fabricated documents on the advice of the Custom Broker/appellant. The statement has been retracted. A statement which is retracted or otherwise, and more so not being substantiated by documentary or other proof, cannot be appreciated as evidence - Revenue has not brought out any evidence, whatsoever as to the benefit that customs Broker got by indulging in such activity. There could however, be a gain for the importer. As per the averment of Authorised Representative for the Revenue, further investigations are in progress. The Respondents are directed to restore the CB licence of the Appellant within 10 days from the receipt or service of this order - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Suspension of CB/CHA License under Customs Broker License Regulation 2018
- Allegation of forgery and manipulation of documents
- Violation of DGFT notification on import of Watermelon seeds
- Failure of CB to advise client to comply with statutory provisions
- Fraud committed by F card Holder
- Appeal against suspension of CB license

Suspension of CB/CHA License under Customs Broker License Regulation 2018:
The appeal was filed against the confirmation of suspension of CB/CHA License under the Customs Broker License Regulation 2018. The appellant's license was suspended based on allegations of forgery and manipulation of documents related to the clearance of Watermelon seeds for human consumption. The suspension order was issued under regulation 16(1) R.W.16(2) of the CBLR 2018, and the appellant was also arrested in connection with the allegations.

Allegation of forgery and manipulation of documents:
The appellant was accused of manipulating documents to show the shipment of Watermelon seeds before the date specified in the DGFT notification. Evidence indicated that the containers were loaded after the notification date, and there were attempts to alter documents to pass through customs undetected. The importer was advised to change dates on certificates, and emails revealed the creation of forged documents to match the required dates.

Violation of DGFT notification on import of Watermelon seeds:
The examination of online records revealed discrepancies between the actual shipment dates and the dates declared on documents. The importer and CB were aware of the mismatch but attempted to manage the situation by altering documents. The mismatch between the tracking system data and bill of lading date raised concerns with customs authorities.

Failure of CB to advise client to comply with statutory provisions:
The CB was found to have failed in advising the client to comply with statutory provisions and exercise due diligence in ensuring the accuracy of information provided. The CB was expected to not withhold any information issued by customs authorities, as per the CBLR 2018 regulations.

Fraud committed by F card Holder:
The F card Holder was implicated in committing fraud by manipulating documents to show the shipment date before the notification date. The judgment referenced a previous case where fraud was deemed to nullify all actions.

Appeal against suspension of CB license:
The appeal challenged the suspension of the CB license, arguing that the Revenue's reliance on vague data from the shipping line's website was not sufficient to prove forgery. The appellant's submissions, supported by authentic documents like proforma invoice and certificates, were considered valid. The lack of evidence to substantiate allegations against the CB, along with pending investigations, led to the decision to set aside the suspension order and direct the restoration of the CB license.

In conclusion, the Tribunal allowed the appeal, emphasizing that the Revenue's actions lacked a solid foundation due to reliance on vague data and lack of evidence against the appellant. The suspension of the CB license was overturned, and the Respondents were directed to restore the license within a specified timeframe.