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TMI Blog2019 (12) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant was not aware about the illicit procurement and use of the IEC of M/s Apollo Enterprises by Shri Ashok Purohit. Thus, the impugned order holding violation of provisions of Regulation 11(a), 11(d), 11(e), 11(f) and 11(n) of CBLR, 2013 is perverse and none of these provisions are attracted in the facts and circumstances of the case. There is no allegation of filing the bill of entry, knowingly the same to be misdeclared. There is no case of connivance of the appellant CHA with the actual importer of the goods namely Shri Ashok Purohit. There is no allegation by the Revenue that the appellant CHA received any extra remuneration, than the normal remuneration for filing the bill of entry under dispute. The appellant CB /CHA have erred in not receiving the KYC documents directly from the hands of the IEC holder - Shri Shantaram Kajrekar. Further, as the documents were received through Shri Samir Shah relative of partner, there was an element of trust. Thus, there is some element of inadvertance on the part of the appellant-CHA. There is no case of malafidely filing the bill of entry under collusion and /or connivance, with the said Shri Ashok Purohit or Shri Samir Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emote Control/ Plastic Holder/ Screw/ Power Cord/ TV Stand/ Manual/ Empty Carton. 6. The corresponding invoice No. N100200908 dated 21.10.2016 issued by M/s Niku Exim International Pte. Ltd. for the said consignment, specified the value of the goods as USD 11,052 and indicated that parts pertained to 32" LED TVs. Whereas, the other invoice (actual) for the same consignment, retrieved from the premises of M/s Pankit Forwarders, indicated that the "PCB with wire" pertained to LED TVs having screen sizes of 32", 40", 43", 48", 49" & 55". The scrutiny of the said Bill of Entry dated 02.11.2016 also revealed that during assessment the unit prices of the "PCB with wire" had been enhanced from USD 3 to USD 5.5 and that the unit price of "Back cover for LED TV" had been enhanced from USD 2 to USD 5. 7. In the statement recorded of Shri Samir Shah, Proprietor of M/s Pankit Forwarders, he inter alia stated that he was using the licence of M/s S.M. Wairkar to clear the import consignment of M/s Apollo Enterprises and had facilitated clearance of past seven consignments. He had approached Shri Ashok Purohit, Proprietor of M/s Navrang for the import clearances of parts of LED TV under the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation by the DRI he came to know that IEC in the name of M/s Apollo Enterprises have been used by one Shri Ashok Purohit for import, whom he had never met before. 11. Statement of Shri Ashok Purohit, Prop. of M/s Navrang was recorded who inter alia stated that he was engaged in import of airconditioner parts and LED TV panels. He agreed with the statement of Shri Shantaram Kajrekar, prop. of M/s Apollo Enterprises. He was in search of an IEC to be used for his imports, as he wanted to avoid tax liabilities. In August, 2016, he met one Shri Sanjay Jadhav who offered him an IEC in the name of M/s Apollo Enterprises for a sum of ₹ 50,000/-. Alongwith the IEC, Shri Sanjay Jadhav had also given him some other documents of M/s Apollo Enterprises like VAT registration certificate, Income tax return and copy of electricity bill for being used as KYC documents. He has given these documents to Shri Samir Shah of M/s Pankit Forwarders whom he had hired for the clearance of his import consignments of parts of LED TV. Although he had his own IEC in the name of M/s Navrang he was purposely using the IEC of M/s Apollo Enterprises to avoid various tax liabilities. He had earlier impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TV 1228 15 Accessories (including Plastic TV Stand, Plastic Holder, Adapter with Power Cord, Remote control, Screws, Battery and Manuals (for Sony LED TV Model Nos. KLV-32-R30@D, KLV-40R352D, KDL-43W800C, KLV-48W652D, KDL-49W750D & KLV-55W800C) 1228 14. The quantity of the goods as per the bill of entry and in the containers were found tallying. However, it was found that the parts declared as parts for 32" LED TV were in fact parts of 32" and other sizes of LED TV of Sony brand namely 40", 43", 48", 49" & 55". In view of the apparent misdeclaration of the goods, the said consignment under import was seized on 26.11.2016 under the reasonable belief that the goods under import were in contravention of the provisions of the Customs Act, 1962 and liable for confiscation under Section 111 of the Customs Act. 15. Shri Ashok Purohit in view of his admission of misdeclaration, voluntarily made payment of differential duty for all the seven consignments amounting to ₹ 63,48,000/-. 16. It appears to Revenue that Shri Ashok Purohit, Prop. of M/s Navrang and import dealer/ supplier of parts of airconditioner and LED TV have used the IEC code of M/s Apollo Enterprises alongwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hok Purohit. Further, as per the statement of Shri Dewang M. Shah, Partner of the appellant firm, it is evident that M/s Apollo Enterprises was the client of Shri Samir Shah and they have filed the bills of entry as per instruction of Shri Samir Shah. Further, it is evident that the partner of the appellant CHA firm had never met the IEC holder Shri Shantaram Kajrekar, Prop. of M/s Apollo, nor had carried out any KYC check. Thus, it appears that the appellant custom broker and M/s S.M. Wairkar by not causing the mandatory verification of the antecedent, identity and functioning of the IEC holder at the given address, had filed the bill of entry in gross violation of the provisions of CBLR, 2013. Further, the partner of the appellant firm Shri D. M. Shah was aware that the CHA licence of Shri Samir Shah was suspended but still they filed the bill of entry on the basis of documents received from him, without verification. Thus, there is lack of bonafide, rather indicates malafide on the part of the appellant CHA firm in their filing of bill of entry, by committing various types of acts of commission or omission. 18. Further, a separate show cause notice No. DRI/MZU/CI/INT-112/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah as explained in the SCN. In reply they tried to explain their innocence. But they allowed to use their licence without verification of KYC norms. This show that they are equally responsible for the lapse. In reply they have admitted their lapse. The relevant portion of their reply is reproduced below: No customs broker would cover venture to put his entire business in danger by helping a particular importer, however important he may be. In past so many years of our working, we had not violated any provision of CBR 2014 knowingly and with an intention to defraud the revenue. So if any mistake has taken place the same may be consider as honest and inadvertent mistake. In fact we had no previous knowledge of any mis-declaration regarding the said imports and have unknowingly become the pre of situation and so our case deserves for a lenient view. In view of the above it is found that the allegations made in the SCN are proved. As regards the lenient view, it is observed that the final decision is to be taken by worthy Commissioner and recommendation of any type is neither in my jurisdiction nor is binding on adjudicating authority and is left on him. The allegations mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation 11(d) of CBLR, 2013 made out, which stipulates that the CB shall advise his client to comply with the provisions of the Act and shall bring the matter of non-compliance to the notice of the Customs officer. Further, as regards Regulation 11(c) of CBLR, 2013 is concerned, the provision provides that CB shall exercise due diligence to ascertain correctness of any information which he imparts to his client, with reference to any work related to clearance of cargo. It is submitted that at the time of filing of bill of entry, appellant had obtained all the documents and verified the address from respective website, which was found to be correct and therefore had exercised due diligence. Further, as the clearance work had come through relative of the partner, therefore, the appellant did not suspect any foul play. 25. Further, as regards the allegation of violation of Regulation 11(f) of CBLR, 2013, which provides that CB shall not withhold information contain in any order, instruction or public notice relating to clearance of cargo from a client, who is entitled to such information. The said allegation is bald as there is no mention of any particular information/ orders/ instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ascertain correctness of information. Further, reliance is placed on the ruling of this Tribunal in Aramex India Pvt. Ltd. vs. Commissioner of Customs (Airport), Mumbai -2017 (357) ELT 420 (Tri. Mumbai) where it has been held that appellant lacked knowledge of alleged conspiracy and offence committed by certain persons, which included some of its employees, with intent to evade any duty for any personal gain. 27. It is further urged that the Ld. Commissioner has failed to appreciate that the appellant is in profession of custom clearance from 2013 and has offices in two stations. Except in the present case, they have not been penalised in any manner by any agency or department. Further, the appellant was not aware of the fraud being committed by Sh. Ashok Purohit in connivance with others. Further, reliance is placed on the ruling of Delhi High Court in Ashiana Cargo Services vs. Commissioner of Customs (I&G) - 2014 (302) ELT 161 (Del.) wherein the Hon'ble Delhi High Court held that the concurrent finding of fact by the Commissioner and this Tribunal, that CHA did not have any knowledge that illegal exports and smuggling of narcotics was effected using G Cards given to employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that there is no case of connivance of the appellant CHA with the actual importer of the goods namely Shri Ashok Purohit. There is no allegation by the Revenue that the appellant CHA received any extra remuneration, than the normal remuneration for filing the bill of entry under dispute. The appellant CB /CHA have erred in not receiving the KYC documents directly from the hands of the IEC holder - Shri Shantaram Kajrekar. Further, as the documents were received through Shri Samir Shah relative of partner, there was an element of trust. Thus, there is some element of inadvertance on the part of the appellant-CHA. Under the circumstances, there is no case of malafidely filing the bill of entry under collusion and /or connivance, with the said Shri Ashok Purohit or Shri Samir Shah. In this view of the matter, we find that the punishment of revocation is too harsh and disproportionate. Accordingly, we allow this appeal in part and set aside the order of revocation. So far as the forfeiture of security deposit is concerned, the same is reduced to ₹ 1,00,000/- (Rupees One lakh only). 30. We further direct the respondent Commissioner to restore the CB license No.R-60/Del/CUS/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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