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TMI Blog2020 (7) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been booked against one Shri Sarfaraz Khan Pathan of Ahmedabad and three importers viz. R.M. International and M/s.T.G. Enterprises and M/s. M.M. Enterprises of Ahmedabad; that Areca Nuts and Black Pepper of Indonesian and Vietnam origin respectively were misdeclared as of Sri Lankan origin by the said importers in connivance with Shri S.K. Pathan and Shri Vinod Kumar Sharma -Customs Broker (V.S. Bhagwati Shipping), who had cleared the goods from customs at Nava Sheva Port. Further, inquiry in the matter had revealed that Indian importers other than aforesaid three, have adopted similar modus operandi , which has resulted in loss of customs duty to the tune of crores of rupees. The importers in India along with de facto owners and Custom Broker - Vinod Kumar Sharma has admitted their offence, stating that the Areca Nuts and Black Pepper imported into India by declaring the same as of Sri Lankan origin, was actually not of Sri Lankan origin. It further appeared that the appellant, Customs Broker, Vinod Kumar Sharma has facilitated the fraud of mis-declaration as to country of origin. 3. Inquiry was also conducted at Bangalore against M/s. Hamza Enterprises and M/s. Om Shiva S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not meet the proprietors of the above mentioned firms, that this fact was also confirmed by the importers of R.M. International, M/s.T.G. Enterprises and M/s.M.M. Enterprises of Ahmedabad in their respective statements recorded under Section 108 of the Act. That all the correspondences/interactions in respect of the import of Areca nuts and black pepper were made with S.K. Pathan; that in the whatsapp conversation, on being asked by Shri S.K. Pathan, he replied that country of origin as Sri Lanka must be written on the P.P. bags for availing the country of origin; that S.K. Pathan used to send him the payment towards customs duty and other shipping charges through RTGS from the bank account of the aforementioned three firms of Ahmedabad; that he charged about Rs. 3500 per container from S.K. Pathan for clearance of Areca nuts and black papper and thus he facilitated Shri S.K. Pathan in mis-use of the duty benefit in import of Areca nuts and black pepper under ISFTA/SAFTA agreement. Thus, it appears that V.K. Sharma, appellant -CHA not only violated the Regulations of CBLR, 2013 but also colluded and abetted with others in violating the provisions of Customs Act in availing inadm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, data or information. Whereas in the course of investigation, it became evident that that Shri V.K. Sharma in his statement, inter alia, stated that the documents such as customs information sheet, undertaking and authenticity of SAFTA certificate and Authority letter to Customs in the name of T.G. Enterprises were not signed by the proprietor of T.G. Enterprises, whose signatures on the said documents were different from the signatures on the PAN Card, as submitted by the proprietor. Evidently Shri V.K. Sharma failed to verify the KYC information and correctness of the IEC No, GSTIN, identity of his clients, the declared address and thus, they contravened the Regulation 10 (a) of CBLR 2018. Accordingly, the appellant was required to show cause as to why not for the alleged violations under Rule 10 (a), (d), (e) & (n) of CBLR read with Rules 11 (a) (d) (e) and (n) of erstwhile CBLR 2013, the CB licence should not be revoked and should not be imposed with penalty , as well as forfeiture of part or whole of security deposit of the appellant. 9.1 It is also alleged that the fraudulent import of these items led to evasion of Customs duty as the importing parties paid conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as connived with the importer to wrongly avail benefit of ISAFTA/SAFTA schemes benefits. Therefore, it was further concluded that the Customs Broker has grossly violated the provisions of Regulation 10(d) and 10(e) of CBLR,2018 [erstwhile Regulation 11(d) and 11(e) of 2013]. 10.3 Learned adjudicating authority has rejected the argument of appellant that department has not been able to prove that the COO Certificate have been proved to be non genuine. In this regard learned Commissioner has again relied upon the statement dated 22.11.2017 of Sh. V.K. Sharma, Proprietor of the CB firm in which he has confessed that impugned goods are not of Sri Lankan origin. Thus it has been concluded in the impugned order that the goods were mis-declared as of Sri Lanka origin by the CB in connivance with importers and Shri Sarfaraz Khan Pathan, whereas he was required to advise his clients to submit genuine documents and on failure to bring the matter before the customs authorities. Thus learned Commissioner has held that CB has violated the Regulation 10 (d) and I0(e) of CBLR, 2018 read with, I1(d) and I1(e) of erstwhile CBLR, 2013, as amended." 11. Ld. Counsel for the appellant contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ahmedabad DRI office, some of the corroborating evidence in the impugned order, has been adopted from investigations and evidence collected by the Bangalore DRI office, in respect of imports made at Nhava Sheva by importers based in Bangalore. No evidence or even reference number of report of Bangalore DRI finds mention in the SCN, which has resulted in the cryptic impugned order. No documents or even the investigation report has been supplied to the CB with respect to the said Bangalore based importers. Thus there has been gross violation of principles of Natural Justice, as CB has not been given copy of evidence against which he is to defend himself. 14. Ld. Counsel for the appellant has placed before us the documents like copy of the bail application of V.K. Sharma, etc. which shows that the appellant CB as well as the Ahmedabad based importer had retracted their statements made before the DRI officials during investigation, which fact has been ignored by the respondent Commissioner. Accordingly, the ld. Counsel prays for allowing their appeal, setting aside the impugned order with consequential benefit. 15. The ld. Authorised Representative for the Department supports th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, leading to mis-carriage of justice. 19. We further observe that the main allegation against the appellant CB is connivance in production of false certificate of "country of origin‟, submitted at the time of clearance along with the bills of entry. The only evidence in this case appears to be the confessional statement of the authorised person of appellant, Mr. V.K. Sharma. There is no report from the Appropriate Authority of Sri Lanka disputing the certificate of origin, who are the competent persons to give evidence in the matter. There is no whisper of any verification made by the Customs Authority during investigation from Sri Lankan Authority. Further, as contended by the appellant, we find that there is violation of the provisions of Section 138 (B) and (C) of the Customs Act, as the evidence being statement of other persons relied upon in the adjudication proceedings, has not been examined nor made available for cross examination. Further, there is no certificate as provided under Section 138 (C) of the Customs Act, in support of the electronic record relied in the show cause notice like email, whatsapp conversation, etc. 20. We are conscious of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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