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TMI Blog2020 (12) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... r about three months and during all this time why they permitted the appellant F-Card holder and Director to use the Customs Broker license of the company. Further there is no explanation obtained by the court below as to the reason for failure on the part of the other Directors to intimate the Custom department of change in the Constitution of the Directors of the company holding CB license. Further the contentions of this appellant as to the forgery and fraud being committed by the other Directors, particularly Shri Mukesh Kumar Saini have not been found to be untrue but have been summarily rejected without any reason recorded. As the Customs Broker account of the custom broking company can be deactivated itself on ICEGATE, still the same was not done by the other alleging Directors till 18 December, 2018, for which there is no explanation. The present proceedings suffer from the vice of biasness as well as are in violation of the principles of natural justice. Also, the show cause notice issued to this appellant is time barred and bad. Further, the present proceedings are by way of repetition of the allegations in the earlier show cause notice issued to the CB company, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company controlled by Shri Mukesh Kumar Saini. Most of the clients of the said company were introduced by either Shri Mukesh Kumar Saini or Shri Raj Singh Saini while a few of the clients were introduced by the appellant. 3. In the course of normal business activity this appellant received instructions from Shri Raj Singh Saini on 8 November, 2018 requesting him to process some export consignment. The appellant rejected the proposal due to lack of proper antecedent of the exporter and lack of genuine documents. However, Shri Raj Singh Saini filed 32 shipping bills under the CB license of one M/s Global Links, before Diwali of 2018 at ACC (Export). The said consignments had been detained by SIIB, ACC (Export). This led to bitterness between the appellant and Shri Raj Singh Saini. 4. Shri Mukesh Kumar Saini and Shri Raj Singh Saini with intention to harm the appellant, behind his back filed a complaint before the licensing authority on 20 November, 2018 on the letter head of the company under the signature of Shri Mukesh Kumar Saini, the Managing Director. It was alleged that this appellant had filed the bills of entry in the name of CB company illegally, in spite of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Import General) and the Supdt. informed him about the resignation made by him from the directorship of company and thus requested to surrender both the CHA license as well as the F-Card. On getting the communication from the department, the appellant immediately approached the department and personally inspected the letter submitted by the said company and Shri Mukesh Kumar Saini, and after examination immediately informed the Policy Division that his resignation from the said company is false and the other Directors have committed forgery and fraud, and are mis-leading the department. This appellant also submitted a letter to the Commissioner of Customs (General) on 10 December, 2018 categorically mentioning that he has never resigned from the said Customs Broker company and the said Shri Raj Singh Saini and Shri Mukesh Kumar Saini have committed fraud and forgery with mala fide intention to ruin him. It was further requested that the Commissioner of Customs (General) may kindly look into the matter and take necessary action against them. Thereafter, the appellant received summons dated 13 December, 2018 for appearing in the office of the Commissioner of Customs (Airport Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of Shri Mukesh Kumar Saini and other Director. 9. It was also stated in the deposition that all the shipping bills were received through office e mail of the company, which was operated by Shri Mukesh Kumar Saini and hence everything was in his knowledge, as far as shipping bills etc. are concerned. He was the authorized signatory of the company during the period for the purpose of transacting Customs Broker business, as is evident from his role on ICEGATE (official website of the department for filing of documents etc. by Customs Broker). He also stated that it is wrongly alleged that 700 shipping bills are filed, he has filed approximately 300 shipping bills. That there were no adverse objection by the department. Shri Raj Singh Saini requested him on telephonically on 8 November, 2018 for clearance of some export consignments, which he refused for lack of bona fide of the exporter. It is further stated that Shri Raj Singh Saini is trying to harm/spoil his career by getting the CB license closed. This license have been granted on the strength of his qualification as a Customs Broker. 10. The appellant on 19 December, 2018 submitted details of shipping bills which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o why he be held not responsible for contravention of the provisions of Regulation 14 of CBLR, 2018 and further why not penalty be imposed in terms of Regulation 18 of CBLR, 2018. The said show cause notice is based on the enquiry report dated 11 July, 2019 (in case of the CB company) which is as follows: This issue appears to be personal disputes among the directors of the Customs Broker firm, however, in case of Pvt. Ltd. Firm, any change of director by way of appointment/resignation, the date from ROC website is required to be considered/believed. In this case, resignation of Shri Suresh Saini has been confirmed with the company master data submitted by the Customs Broker, wherein it is seen that Sh. Suresh Saini resigned the Customs Broker firm on 26.8.2018 being a qualified person under CBLR, Sh. Suresh Saini, F-Card holder of the Customs Broker firm, was required to know his status in the Customs Broker firm and hence he was no more related with the Customs Broker firm w.e.f. 26.8.2018 (as per ROC website), he should not have worked for any customs clearance for the said firm. Hence I am of opinion that Customs Broker have themselves requested to surrender the Customs Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of letter dated 3 December, 2018, submitted by the said company and the show cause notice have been issued much after 90 days as required under Regulation 17(1) of CBLR, 2018. Thus the limitation for issue of show cause notice expired on 3 March, 2019. He also stated that there is no violation under Regulation 17 and prayed for dropping of the proceedings. 14. That the enquiry officer of Shri Rex Hungyo in the enquiry report was of the view that the appellant, holder of F-Card have failed to comply with the provisions of Regulation 14 of CBLR, 2018 and is thus liable for penalty under Regulation 18 of CBLR. 15. The appellant appeared before the adjudicating authority and filed written submissions dated 24 December, 2019 disputing the enquiry report and stating that the present enquiry officer Shri Rex Hungyo is biased against the petitioner, as he has already in the earlier enquiry report conducted in the matter of show cause notice to the CB company observed that the present appellant have rendered himself liable to be penalized under Regulation 18 of CBLR, 2018 and he is of the opinion that the appellant F-Card holder has violated the provisions and committed misconduct in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged resignation letter of this appellant. It is further pointed out that reliance placed by the enquiry officer on the company master data‟ from the website of the Ministry of Company Affairs, Government of India, the last date of AGM shown is 30 September, 2017 and the date of balance sheet considered in the meeting is 31 March, 2017, and in the details of Directors the name of this appellant does not appear and the names appearing for Directors are - Shri Mukesh Kumar Saini, Shri Atul Kale, Shri Sanket Mahesh Patil and Shri Harshit Saini. Thus, there is clear error on the part of the enquiry officer and the learned Commissioner in understanding the company master data‟ as this appellant was admittedly Director in the said company - M/s S. Satyam Aviations Pvt. Ltd. on the date of AGM being 30 September, 2017 and also thereafter till 20 August, 2018, as is alleged and is evident from the record. No enquiry report was conducted with respect to the affairs of the company and the change in directorship, nor any enquiry report was called for from the concerned Registrar of Companies. It is further urged that no proper enquiry has been made either by the enquiry officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brother of the other Director Shri Mukesh Kumar Saini had requested him to clear some consignments, which this appellant after going through the documents and the antecedents of the exporter refused to do, which led to animosity and dispute. For refusal by this appellant who was the F-Card holder, Shri Raj Singh Saini attempted to get the export consignment cleared through another CHA firm - M/s Global Links and thereafter all the 32 consignments were found to be irregular and detained by SIIB. Such serious allegation against the other Directors have not been found to be untrue and without making proper enquiry in the matter, the proceedings against this appellant are found to be bad and vitiated. I further find that the enquiry officer was prejudiced against this appellant, as he had already made adverse observations against him in the previous enquiry report with respect to the CB company dated 11 June 2019, prior to initiation of the present proceedings. I further find that the present proceedings suffer from the vice of biasness as well as are in violation of the principles of natural justice. I also find that the show cause notice issued to this appellant is time barred and b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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