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TMI Blog2020 (6) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case are that the appellant is a partnership firm and holding Customs Broker licence from the year 2000. They are operating under Form C procedure in terms of Regulation 7(2) of CBLR in Mumbai Customs Zone. Appellant filed various Bills of Entry pertaining to the import of TV panels, parts of LED TV sets etc. by M/s. Vishal Collections, Shukra Enterprises, Vikram Enterprises, Tablish Enterprises, Hitesh Enterprises, Garret Impex, Robs Impex and Ozone Collections. Directorate of Revenue Intelligence (DRI) investigated the issue of import of parts of LED TV with the perception that these parts are imported by a group of persons and that these parts should be assessed as complete LED TV. During the investigation, the DRI recorded statements of various persons and one such statement of the employee of the appellant, Shri Damodhar Maddiboinu was recorded on 18/01/2016 under Section 108 of the Customs Act, 1962. On completion of investigation, DRI issued a show-cause notice dt. 26/10/2018. The said show-cause notice and the investigation report was sent to Commissioner of Customs, Bangalore who vide order dt. 18/12/2018 suspended the Custom Broker licence which was subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith declaration in shipping bills, it cannot be deemed to be misdeclaration by CHA. Learned counsel also submitted that in plethora of cases, the Tribunal has held that revocation of licence is too harsh punishment which will deprive them of their livelihood and for this he relied upon the following decisions:- i. Sadanand Chaudhary Vs. CC(G), New Delhi [2018(363) ELT 1018 (Tri. Del.)] ii. Service Bureau Vs. CC, New Delhi [2018(363) ELT 949 (Tri. Del.)] iii. Shri Manjunatha Shipping Pvt. Ltd. Vs. CC, Bangalore [Final Order No.21867-21868/2018 dt. 11/12/2018 by CESTAT, Bangalore] 5. On the other hand, the learned AR appearing for the Revenue reiterated the findings of the Commissioner and submitted that while passing the impugned order he has considered each and every allegation in detail along with the evidence on record. He further submitted that Inquiry Officer after detailed inquiry and examination of Mr. Damobhar Moddiboina and Mr. Jagdish Rao, Director of the appellant has sustained all the allegations regarding the violation of regulations of CBLR by the appellant. 6.1. After considering the submissions of both the parties and perusal of the material on record, we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s corroborated by the statements of Shri. Dinesh Joshi. The customs duty was paid from the account of Shri. Dinesh Joshi. The CHA firm raised bills on M/s. Alfa Exim belonging to Shri. Dinesh Joshi. They received payments from M/s. Alfa Exim. In all they never interacted with anybody other than Shri. Dinesh Joshi. The Inquiry Officer held that the CB has not verified the authenticity of documents with the actual importers. It is submitted by the Noticee that IO presumed that the IEC holder is not the importer. From the statement and the facts brought out in the investigation it is clear that the IEC holder was not the importer. The goods were not purchased by them from the suppliers. The duty was not paid by them. The goods were not received by them. In fact, they were not aware that there was some import of TV panels etc on their name. With all these facts on record, it only appears that even after being issued the Show cause Notice under Customs Act, 1962 and under CBLR, 2018, the Noticee refuses to understand that the IEC holders were not the actual importers. Surprisingly, while the Noticee argues that the IEC holders are the actual importers, he does not answer the mute questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixation in that if Shri Damodhar did not do that, it amounts to saying that nobody did it. Apart from these, the invoice and the packing list are dear and do not contain anything strange to demand an explanation from the importers. There Is no ambiguity as to the nature of the goods being imported nor any abnormality vis-a-vis the description, quality, etc.. 18.2 I have examined the rival contentions. Regulation 11/(d)/10(d) requires that the Customs Broker shall advise his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be. The CB is thus required, in terms of the above obligation, to make a general advise, to comply with the provisions of the Act and Rules there under, to his client. Apparently, the client referred to herein is the importer or exporter on whose name the documents are failed. While it may not be insisted that the CB has to personal give a lecture as contested by the Noticee, the CB by reasonable means of communication that is verifiable and submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and receivec their service charges from the IEC holders and the customs duty was paid from the accounts of IEC holders. But, due to utter disregard of the Noticee towards his obligations under CBLR under which they are licensed and earn their livelihood, this was not the case. I fully concur with the IO in holding that by not identifying their client, i.e., the importer was never in a position to comply with Regulation 11(d)/10(d) of CBLR, 2013/2018. 19.1 The other charge is that of failure to comply with Regulation 11(C)/10(a) of CBLR, 2013/2018 which requires that the CB shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. The Show Cause Notice alleged that having interacted with thired persons without interacting with the actual IEC holders for whom the filed the Bills of Entry were in no position to comply with Regulations 11(e). The IO confirmed the charge of failure by the Noticee. The Noticee contested the IO's finding on the ground that the person whose statement is relied upon, i.e. Shri. Damodhar Maddiboina has clearly stated that he was in the mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represents the CB Noticee firm as a whole while Bhanusali is only an employee carrying out the limited functions assigned by the Noticee firm. As per Regulation 13(2) of CBLR, 2018, the Customs Broker shall exercise such supervision as may be necessary to ensure proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment. Thus, the CB shall be responsible for all acts and omissions of Shri. Damodar Maddiboina as well as Shri. Bhanusaali. The Partner of the firm has not made any counter submissions while he was examined along with Shri. Damodar Maddiboina. In any case, even if the statement of Shri. Damodar maddiboina is ignored, it is clear from the facts of the case that Shri. Dinesh Hoshi received the documents from Shri. Sarfaraz's mail, the Noticee was never in touch with any of the IEC holders for receiving documents, IEC holders were not aware of the imports, duties were paid by Shri. Majid in cash to Shri. Dinesh Hoshi, Shri. Dinesh Joshi used to receive Rs. 7500/- per 20ft container and Rs. 10000/- per 40ft Container out of which he used to pay Rs. 5500/- and Rs. 7500/- r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that particular function was being carried out in the firm. It is on record that the DRI Show Cause Notice was agitated as falsely implicating the firm with the more statemtn of the person who was neither sensitized the IO to consider the presence or absence of the other materials to decide the issue. Instead, he has chosen the wrong and the easy way of parroting the illogical conclusion of the DRI Show Cause Notice. 20.2 I have examined the contentions. It is the contention of the Noticee that Shri. Damodar Maddiboina's admissions in his statement should not be relied since he was not the person In charge of KYC verification. It is their contention that the Shri. Bahusali is the KYC person. However, in his statements given before the Customs Officers during investigation. Shri. Damodar Maddiboina never stated that Shri. Bahusali is the KYC person. All the dockets were submitted by Shri. Damodar Maddiboina to the officers under the statement dated28.06.2016 after 5 months of his first statement. Even in the said statement dated 28.06.2016, Shri. Damodar Maddiboina has not named Shri. Bahusali as the person incharge of KYC. Only during examination by IO he stated that Shri. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Act. The same is not applicable for other proceedings such as adjudication. Further, the current proceedings are under the Regulations issued under Customs Act, 1962. The rigors of prosecution are not applicable in administrative proceedings under the Regulations. In any case, Shri. Damodar Maddiboina whose statement was recorded and relied upon has been examined by the Inquiry Officer and the same answers the requirement of Section 138B. 22. The Customs Broker has been receiving documents of multiple IECs from the same persons, the cargo imported by these multiple IEC is the almost the same. The supplier of the goods is same. The modus operandi is so obvious that the TVs are being imported in SKD condition. The Noticee was aware of the fact that duty was being paid from the account of Shri. Dinesh Joshi not from importer's account. The documents are being forwarded from the same email account in respect of all importers. These are all enough indications that there is syndicate working in import of TVs in SKD conditions which were in the knowledge of the Noticee. These facts also indicate complicity of the Noticee in the offence of duty evasion carrued out by frauds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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