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TMI Blog2018 (11) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by appellant and therefore the finding of Commissioner that appellant tampered the Bs/E is ex facie erroneous and perverse. The impugned order revoking Appellant s licence and forfeiting security deposit is hereby set aside - Appeal allowed - decided in favor of appellant. - Appeal No. C/52123/2018-CU (DB) - FINAL ORDER No. 53295/2018 - Dated:- 27-9-2018 - Shri Anil Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri Piyush Kumar, Advocate for the Appellant Shri Rakesh Kumar, DR for the Respondent ORDER Per Anil Choudhary: This is an appeal against the order of Commissioner of Customs (Import General), New Custom House, New Delhi, revoking the Customs Broker Licence of Appellant- M/s Balaji Mariline Pvt. Ltd., New Delhi and also forfeiting the whole of security deposit for alleged violation of Regulation 11(d), (l), (j), read with Regulation 17 (9) of Customs Broker License Regulations, 2013. 2. Appellant is a Customs Broker holding Customs Broker Licence No. R-17/90 issued by Commissioner of Customs (General), New Delhi in 1998 (renewed upto 2027). The licence is also registered in Kanpur Customs CGST Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner, Raebareli reported the fabrication in the Bs/E to Commissioner Allahabad vide letter dated 21.09.2017, who, in turn, intimated the matter to Commissioner, Kanpur (jurisdictional Commissioner in respect of ICD, Panki), who in turn, forwarded all the documents received from Central Excise Raebareli / Allahabad and ICD Panki to Commissioner of Customs (Import General) New Delhi for appropriate action under Customs Brokers Licensing Regulations, 2013. 2.4 Accordingly, Commissioner of Customs (Import General) New Delhi issued a Show Cause Notice dated 25.01.2018 followed by Corrigendum dated 11.04.2018 to Appellant, alleging that Appellant failed to comply with provisions of Regulations 11(d), 11(e), 11(j) and 17(9) of Customs Brokers Licensing Regulations, 2013 and thus rendered themselves liable to action under Regulation 18 and 22 read with Regulation 20 of the CBLR, read with the condition of Bond. 2.5 Appellant filed the reply to Show Cause Notice and appeared before the Inquiry Officer appointed by the Commissioner (I G) New Delhi. In his submissions, Appellant though admitted that while filing Bs/E, Appellant s operator by mistake entered the name of im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on their side, the Bills of Entry were actually filed in the name of M/s Shree Packaging instead of the other unit i.e M/s Quality Packaging and the said mistake has occurred due to human error only, wherein, while entering the name in the checklist instead of branch 1 the operator at their end have entered branch 2 due to similarities in the name and address. Considering the sequence of events I find that initially the CB filed the Bills of Entry in the name of M/s Shree Packaging instead of the other unit i.e. M/s Quality Packaging and when this mistake was noticed by virtue of letter dated 09.12.2013 of the importer, they resorted to tampering the name and address of the importer. So, instead of adopting the legal course for amendment in the said Bills of Entry, he tampered the same without bringing the facts to the notice of concerned Custom Authorities. In view of aforesaid, it appears that they have knowingly attempted, aided and abetted the fraudulent availment of CENVAT Credit. 3. We have heard both the parties at length and perused the records with the assistance of Appellant s learned Counsel and learned DR. 4. Appellant has assailed the impugned Order mainly on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Quality Packaging availed CENVAT Credit in respect of said B/E 03.06.2014 Appellant filed B/E No. 5689777 in the name of M/s Shree Packaging (a unit of Ganga Bag Udyog Pvt. Ltd.) 07.08.2014 M/s. Quality Packaging availed CENVAT Credit of CVD paid under Bill of Entry No. 5689777. 10.10.2014 Central Excise Officers visited premises of M/s. Quality Packaging and finding alterations in aforesaid 2 Bs/E resumed the same under Panchnama. None of the employees of M/s. Quality Packaging produced any letter relating to amendment of name in the Bs/E or stated that the alteration was carried out by the appellant-CB. 07.11.2014 Importer s representative tendered statement under Section 14 of Central Excise Act, 1944, however, did not furnish any letter relating to amendment and/or stated that alteration was carried out by appellant. 16.12.2014 Jurisdictional Superintendent, Central Excise wrote a letter for furnishing documents relating to subject Bs/E followed by a reminder dated 05.01.2015. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.2018 Appellant filed a reply to Show Cause Notice wherein appellant though admitted that at the time of initial filing of Bs/E, appellant s office committed an error of entering name of the importer as Shree Packaging instead of Quality Packaging but categorically stated that he did not receive any letter from the importer for amendment of Bs/E and that he did not make any tampering in documents. 26.06.2018 Commissioner (I G) passed the impugned order revoking Licence and forfeiting entire security deposit. 5.1. From perusal of documents and aforesaid chronology we find force in learned Counsel s submissions that (i) Appellant did not stand to derive any pecuniary gain by amending the Bs/E and there was no reason for Appellant to have carried out an unauthorized alteration in the Bs/E; (ii) importer did not inform Appellant that the name of importer was wrong in the B/E at the time of receiving the imported goods or taking the CENVAT Credit or any time thereafter; (iii) even on 10.10.2014 when the Central Excise Officers resumed the subject Bs/E for suspected manipulation, none of the employees of importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X-Misc-04 dated 03.02.2015 (RUD-X) applied before the Assistant Commissioner of Central Excise Service Tax Division Raebareli for accepting the Bill of Entry No. 2965644 dated 12.08.2013 and Entry No. 5689777 dated 03.06.2014 being technical lapse and permit them to use the same and to regularize the said CENVAT Credit taken by them on the strength of above said Bills of Entry as per the provisions as laid down under Rule 9(2) of Central Excise Rules, 2002. In the said Application, they have also submitted some documents in their support. On scrutiny of these documents, it has been noticed that the party has also tampered with the name of the party on the invoice No. KNP/SI/14-15/90 dated 12.06.2014 (RUD-X) which has been raised by the CHA in favour of M/s Shree Packagings a unit of Ganga Bag Udyog Pvt. Ltd., A-8, Sector-20, Industrial Area, Jagdishpur, Sultanpur. The change / tampering can easily be seen on face / back side of the said invoice. The act of such tampering shows that the party has prepared fake documents with intent to avail and utilize the CENVAT Credit for those Bills of Entry which actually do not pertain to them. The fact of tampering of bills is confirmed from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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