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TMI Blog2021 (6) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... ed proper authorization from the exporter - much importance cannot be placed on the said authorization letter at this stage when the statements furnished remained unchallenged. In these circumstances, it is to be accepted that the appellant contravened the provisions of Regulation 11(a) of CBLR, 2013. Contravention of Regulation 11(d) - HELD THAT:- The learned Commissioner reasoned that since the appellant could not produce the valid authorization for whom they were transacting the business or whom he has represented, the question of advising the said client to comply with the provisions of the CBLR, 2013 is out of question, therefore, the violation of Regulation 11(d) on the part of the Customs Broker has been established. Also, in support of the said finding, the learned Commissioner observed that the appellant had not only filed the shipping bill in question without obtaining authorization but also had filed five such shipping bills in the past of the said exporter without any authorization or verification of the antecedents of the exporter - as per Regulation 11(d), the Customs Broker is required to advise his client to comply with the provisions of the Customs Act, wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are licensed as customs broker bearing license number CB 11/509 issued by Mumbai customs operating at Mumbai as well as at their branch office at Chennai. They have filed shipping bill No. 756001 dated 02.02.2015 at Air Cargo, Meenambkkum Airport, Chennai for export a shipment of perishable cargo Chow Chow (fresh vegetables) destined to Malaysia on behalf of the exporter M/s Pure Food Products, Chennai. The said consignment on X-Ray screening by Air India Staff was found to contain some powdered material and later it was investigated by ACIU, Meenambukum Airport, Chennai resulting into seizure of 40.370 kgs of white crystalline powder, suspected to be Pseudo Ephedrine valued at ₹ 32,29,600/- concealed in the declared cargo, namely Chow Chow . Consequently, statements of various persons were recorded including Shri M. Amrithalingam, Branch Manager of appellant at Chennai, Shri V. Ganesan S Variava Nadar, Power of Attorney Holder (PoAH in short) of the appellant and Shri Sudalaikannu P Nadar, Director of the appellant and on conclusion of the investigation Show Cause Notice was issued to the Exporter and other proposing actions under various provision of the Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the export consignment resulting into violation of Regulation 11(a) of CBLR, 2013 is devoid of merit. It is his contention merely because the appellant could not submit the authorization letter during the course of investigation and the admission in the respective statements of Shri M. Amritlingam, Branch Manager of Chennai Branch, Shri V. Ganeshan S. Vairava Nadar and Shri Sudalkanu P. Nadar, Director of the Appellant, to the effect that authorization of exporter was not obtained, cannot lead to the conclusion that the appellant did not possess the required authority letter from the exporter as it was submitted subsequently during the course of adjudication proceedings before the adjudicating authority as well as appellate authority, hence the same cannot be the basis to confirm allegation of violation of Regulation 11(a) of the CBLR, 2013. In support, he referred to the authorization letter dated 05.10.2014. 5. The learned Advocate Shri P.K. Ethirajan for the appellant further disputing the charge of violation of Regulation 11(d) has submitted that the offending goods namely, Pseudo Ephedrine had been concealed inside the export cargo namely, Chow Chow (fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R, 2013 against the appellant are not established, hence, the revocation of license, forfeiture of security deposit and imposition of penalty as directed in the impugned order are unsustainable in law and liable to be set aside. In support he has referred to the following judgments of this Tribunal viz. Poonia Brothers Vs. Commissioner of Customs - 2019 (370) ELT 1074 (Tri.-Del.), Mahindra Shipping Agency Vs. CC, Nhava sheva - 2019 (370) ELT 608(Tri.-Mum.), Merico Logistics Pvt. Ltd Vs. CC, Kolkata- 2020 (372) ELT 580(Tri.-Kolkata), Jaiswal Import Cargo Services Ltd. Vs. CC, New Delhi - 2019 (370) ELT 1366 (Tri.-Del.), Exim Cargo Services Vs. Commissioner of Customs,2019 (368) ELT 1024(Del.), N.T.Rama Rao Co. CC, Chennai -2020 (371) ELT 789(Tri.-Chennai). Further, distinguishing the judgment of Hon ble Supreme Court in K.M. Ganatra Company s case referred by the Revenue, he has submitted that in the said case the CHA was a regular offender, accordingly, the punishment/penalty imposed against the CHA was upheld. However, in the present case, there was no allegation of breach of any of the Regulations as a Customs Broker in the past against the appellant. Hence, the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim that the customs broker failed in its responsibility as was expected under the CBLR, 2013. Therefore, revocation of the license, imposition of penalty, and directing forfeiture of security deposit ordered in the impugned order are justified. 9. Heard both sides and perused the records. 10. The limited issue needs to be addressed is: whether the appellant Customs Broker violated Regulations 11(a), 11(d) and 11(n) of CBLR, 2013 warranting revocation of license, forfeiture of security deposit and imposition of penalty under various provisions of CBLR, 2013 as directed in the Order impugned. The undisputed facts are that the appellant filed shipping bill for export of Chow Chow (fresh vegetables) for the exporter M/s Pure Food Products. During the course of X-ray screening of the consignment initially by the Air India authority noticed concealment of white crystalline powder and intimated the Customs Department accordingly, who later initiated investigation, by opening all the 150 cartoons, and after necessary test in presence of the exporter and others, seized the entire quantity of 40.370kgs. white crystalline powder suspected to be Pseudo Ephedrine found in 53 cartons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d nor assailed by requesting cross-examination particularly when charge of contravention of Regulation 11(a) of non-receipt of authorization from the exporter was framed against the appellant. The authorities below have also observed that not only in connection with the present consignment but also in the past five export consignments the appellant had not obtained proper authorization from the exporter. The authorization letter dated 05.10.2014 addressed by the exporter M/s Pure Food Products to the Commissioner of Customs, Chennai enclosed with the appeal paper book does not bear any acknowledgement from the Department; also since not produced during the course of investigation by the appellant, its authenticity could not be verified. Hence, much importance cannot be placed on the said authorization letter at this stage when the statements furnished remained unchallenged. In these circumstances, it is to be accepted that the appellant contravened the provisions of Regulation 11(a) of CBLR, 2013. 12. As far as contravention of Regulation 11(d) is concerned, the learned Commissioner reasoned that since the appellant could not produce the valid authorization for whom they were tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation by the CB. Mere claim in this regard cannot suffice the requirement of production of authentic documents, data, information etc. in support of their claim of verification as required under the said Regulation particularly when the export documents were not directly handed over to the appellant and the same was received through a third party i.e. the elder brother of Shri M. Amrithalingam. Therefore, violation of Regulation 11(n) of the CBLR, 2013 as concluded by the learned Commissioner also does not call for interference. 14. Even though we have agreed with the findings in the impugned that there are contravention of the Regulations discussed as above by the appellant Customs Broker, but no evidence is brought on record establishing the involvement of or in the knowledge of the Appellant Custom Broker the attempt to export the crystalline white powder suspected to be Pseudo Ephedrine by the exporter concealing the same in the declared export cargo namely, Chow-Chow (vegetables). In these circumstances imposition of harsh penalty by revoking the license of the appellant is not warranted and hence deserves to be set aside. The common principle laid down in the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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