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TMI Blog2020 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation by Delhi Police, and further in co-ordination with the Customs, it appeared that such prohibited goods were attempted to be exported vide Shipping Bill No. 4933845 dated 17.05.2018, which was filed through appellant Customs Broker. The said consignment pertains to M/s Hindustan Exim India, having IEC (Prop. Ashish Sharma). The goods declared in the shipping bill were 'Note books, ladies leather wallet, leather bag, brass artwares, silk ladies dress, silk ladies trouser, cotton wall hangings, cotton poncho, ladies silk top, cotton lace pkt, cotton cushion cover and cotton money belts', destined for London Metropolitan Port. 3. Shri Ashish Sharma was arrested by the Delhi Police (accompanying the goods) who had presented papers in respect of the said consignment for the purpose of custom clearance. In his interrogation, Shri Ashish Sharma inter alia stated that he is the Proprietor of M/s Hindustan Exim India and does not have any authority in the appellant's CHA firm. He also admitted that in the past also he had cleared and exported several such consignments containing narcotic drugs and psychotropic substances concealed in them, for which export documents were file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of issuance of the licence should not be forfeited, and why not penalty be imposed under Regulation 18 read with Regulation 17 of CBLR, 2018. Shri Jamir Ahmed, Assistant Commissioner, ACC-Import Commissionerate was appointed as 'Inquiry Officer' directing him to report within ninety days of the issuance of the show cause notice. The relied upon documents as per the show cause notice were - 'offence report' (RUD-1) alongwith its enclosures received from Air Cargo Export Commissionerate , New Delhi dated 04.06.2018. 5. The appellant filed reply to the show cause notice on 18.09.2018, before the Inquiry Officer stating that the Special Cell of Delhi Police had arrested four persons namely; (i) Shri Ashish Sharma S/o Radha Raman Sharma (ii) Asim Ali S/o Yasin Khan (iii) Parveen Saini S/o Moti Lal and (iv) Rajinder S/o Dall Chand, who were allegedly involved in the drugs syndicate. The seized drugs were Mephedrone, Methaqualon and other various drugs, tablets like Diazepam, Lorazepam, Nitrazepam, Alprazolam, etc. Shri Parveen Saini is the keyman or kingpin operating in Delhi. On 18.05.2018, Delhi Police has got some information that Parveen Saini will book a consignment of various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the procedure for export of shipment, and the appellant was made a witness by the Special Cell, Delhi Police. 8. The Counsel for appellant states that the respondent authority have blindly relied upon the statement of Shri Ashish Sharma (before Police) for making allegations in the show cause notice, as per the investigation conducted by Delhi Police. It is evident on the face of record that the appellant CHA - Shri Rajesh Pant have nothing to do with the alleged offence. Rather he is the victim of the fraud committed by the accused Shri Ashish Sharma and others who have fraudulently used / misused the CB licence of the appellant, in gross abuse of process of law. Shri Ashish Sharma has impersonated himself as a 'Customs House Agent' and thus committed offence under Section 419 of the IPC. It has come in the record in the investigation of the Delhi Police, that the drugs syndicate including Shri Ashish Sharma were sending consignment of contraband goods with the help of some officials posted in the customs clearance section particularly at the X-ray machine. The appellant CHA have been wrongly implicated and charged for violation of the CBLR provisions. 9. Learned Counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness of any information which he imparts to a client with reference to any clearance related works. 11.3 Learned Counsel points out, in reply to the show cause notice the appellant had urged that first they received the documents 'invoice, packing list' through mail, based on which they have prepared the checklist and sent the same to the exporter for approval. After receiving the shipping bill number from Icegate, the checklist with shipping bill number is sent to the exporter for his reference and necessary action. Once the goods are ready with the exporter for despatch, the complete details like AWB copy, if arranged by the shipper is sent to them to complete the rest of the process. After arrival of the goods at the customs gate / port, a token is issued to cart the goods in the export warehouse by the Customs Department/ custodian and thereafter necessary customs formalities are completed and cargo is handed over to the custodian for further movement. 11.4 It is further urged that shipping Bill No. 4933845 dated 17.05.2018 was filed by them after they received invoice cum checklist from exporter, the checklist was prepared by them and the same was sent to the exporter for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t obtain any authorisation from M/s Hindustan Exim India by whom he was for the time being employed as a Customs Broker, nor produced such authorisation to the Deputy/ Assistant Commissioner of Customs. Since no such authorisation has been produced. (b) They did not transact business in the Customs Station either personally or through an authorised employee duly approved by the Deputy / Assistant Commissioner of Customs, but through an unauthorised person Shri Ashish Sharma, Proprietor of M/s Hindustan Exim India. Since no mail correspondence has been produced to show exchange of information and documents between the said Customs Broker and Ashish Sharma; (c) They did not advise his client M/s Hindustan Exim India to comply with the provisions of the Act, other allied Acts and the Rules and regulations thereof, as it was revealed that the exporter has cleared and exported several such consignments in the past also with NDPS concealed in them and papers of all such consignments were filed by Ashish Sharma using CHA Licence of 'M/s Paramount Cargo and Logistics solutions', whereas he does not hold any authority in that CHA firm. Further, in case of non-compliance, they did not br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi Police and a copy of which have not been supplied to the appellant so far. It was also urged that the charge sheet in the alleged offence under NDPS Act against the said Ashish Sharma and others have been filed before the Special Cell, Delhi Police before the Additional Session Judge, Patiala House, under registration No. 378/2017 dated 13.11.2018, against all the accused persons, on which cognizance have been taken (the charge sheet was enclosed with the reply). Further, the appellant also by their letter dated 05.12.2018 prayed for allowing cross-examination of the witness of the Department and for grant of personal hearing in accordance with law. Attention was also drawn to the 'enquiry report', wherein the Enquiry Officer have observed - that any further action will be taken on the basis of the outcome of investigation by the Delhi Police. It was further pointed out that there is no charge against the appellant CB in the charge sheet submitted by the Delhi Police in the matter. According to the charge sheet, the Police have examined the other Customs Brokers on summons including the appellant and had also called for documents relating to shipping bill from the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- as well as penalty of Rs. 50,000/-. 15. Being aggrieved, the appellant CB is before this Tribunal. 16. Learned Counsel have urged the grounds already reiterated as aforementioned and have further urged that Custom area have been defined in Section 2(11) of the Customs Act- 'Custom area' means the area of a custom station or a warehouse, and includes any area in which imported goods or export goods are ordinarily kept before clearance by customs authorities. 16.1 Learned Counsel further urges that as the seizure is from the truck parking area which is outside the custom premises, no case is made out of violation of the provisions of the Customs Act. It is urged that on the basis of statement of Shri Ashish Sharma the whole allegation is made against the appellant, who have been never examined by the customs authority at any stage, including adjudication of the present show cause notice. Thus, the said statement of Ashish Sharma is not a reliable piece of evidence and as such the whole proceedings are vitiated. Further, admittedly the contraband goods in question have not been seized by the Customs authorities. No proceedings for confiscation etc. have been initiated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce the authorisation given by the said M/s Hindustan Exim India. He further relies on the allegation made in the show cause notice and also relied on the Enquiry report and states that the alleged violation of Regulation(s) is proved. 18. Having considered the rival submissions and after going through the record, we find that the impugned order and the proceedings suffer from the following errors/ anomalies:- 18.1 Customs has blindly relied upon the investigation by the Delhi Police, but at the same time have erred in not referring to the charge sheet submitted by Delhi Police under NDPS Act before the Additional Special Judge, Patiala House (charge registration No. 378/2017 dated 13.11.2018). 18.2 We find that the relied upon documents have not been supplied to the appellant. Ashish Sharma, Prop. of M/s Hindustan Exim India, whose statement has been heavily relied in the present proceedings (which was recorded by the Delhi Police) was never examined by the Customs Authority at any stage or in this proceeding. Thus, the impugned order is bad for not complying with the mandate of Section 138B of the Customs Act. Even a copy of the statement was not supplied to the appellant. ..... 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