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TMI Blog2021 (9) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... n the recent past and there is reasonable belief that such consignments also had prohibited goods. Other three appellants (other than custom broker/agent of customs broker) - HELD THAT:- The other three appellants are freight forwarder, evidently they have acted as the facilitator of export of prohibited goods. They have acted as an agent of the Custom Broker M/s CSB Logistics, directly or indirectly. Thus, these three appellants were also duty bound to observe the KYC norms and to assist the Custom Broker in complying with his obligation under Customs Broker Licensing Regulation, 2013. Penalty - HELD THAT:- As per the evidence on record, these appellants have not made any profit and/or participated in any profit in the export of prohibited goods. Rather these persons have acted on normal remuneration basis as a freight forwarder - appeal allowed in part by reducing the quantum of penalty. Appeal allowed in part. - Customs Appeal No. 52154 of 2019-SM, 52159 of 2019-SM, 52161 of 2019-SM and 52234 of 2019-SM - FINAL ORDER NOS. 51797–51800/2021 - Dated:- 8-9-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Sh. Siddhartha Yadav Sh. Somesh Arora, Advocates for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agents. They complete the KYC formalities only in the case of direct clients and for the other cases, this work was done by the sub agent. They were mainly working with only two sub agents namely; (i) M/s Info Capital Logistics Co.; and (ii) Force Logistics Pvt. Limited. They have prepared shipping Bill No. 5004801, as the said consignment was received through M/s Info Capital Logistics Co. - freight forwarder. Therefore, all the necessary formalities were done by them. They had sent the concerned consignment directly to cargo terminal. 6. In his statement Shri Tushar Ghosh - the Business Developer of M/s Info Capital Logistics Co. (ICL for short) Stated that like sub-agents / agents, they used to get export/ import shipments from M/s Cargo Specialist Inc. and handed over the shipments to M/s Blue Bell Logistics for further processing. The exporter - M/s Fashion World, booked their shipment through M/s Cargo Specialist. All the documents like the invoices, packing list etc. were sent by M/s Cargo Specialist Inc., to them through their e-mail id. Thereafter, they forwarded the same to M/s Blue Bell Logistics Pvt. Limited by e-mail, for preparing checklist and draft Airway Bill, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. (l) That the first contact person in the chain is Shri Praveen Pant of M/s Cargo Specialist Inc., who has stated that he has spoken to these persons namely Reyaz Ahmed or Rajbir on phone only, and has never met them. On enquiry about the payments related to clearance of past shipments, it has been informed by Praveen Pant that he has received only part payment and that too on four occasions. That on three occasions he received the payment in his bank account No. 31528865863 (SBI Patparganj) directly and on one occasion he received the payment in cash through one person. On being asked about the details of this person, he stated that he could not recall his details. The bank statements have been provided by Pant which confirmed his statement as true. (m) There is a common fact in the statement of all person involved, that all the consignments were sent by the client directly to airport, and services of transportation from Freight Forwarder/ CHA have not been availed of. However, M/s Blue Bell Logistics who used to provide warehouse and transportation services to their clients, have stated that on two of the occasions they happened to see the consignment, despite the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi (S/Bill No. 5175544 dated 24.09.2014) and (ii) M/s Socomec India Pvt. ltd., 756, Pace City-II, Sector 37, Gurgaon (Haryana) (Shipping Bill No. 596072 dated 10.11.2014). However, the photo of Mr. Dharmendra Kumar as given by him at the time of opening of their bank account in Axis Bank branch of Sector-24, Rohini, New Delhi was found different from, with the photo as found on KYC form as furnished by him to Custom House Agent/ Forwarder. In these two cases also, the party attempted to export red senders , the prohibited items as per CITES, but mis-declared them as (i) clutch plates, and (ii) clutch parts for car (automobile) in their shipping bill, as filed by them for export of the same. From the foregoing, it appears that the mastermind (person) in all these case including the present one is the same. Despite efforts made by this office, the mastermind in this activity of attempted export of prohibited goods, could not be traced. 9. Further it appeared to Revenue that there have been breach of the Foreign Trade Policy 2009-2014. Further, the export of wood and wood products in the form of logs, timber, stamps, roots, bark, powder, flakes, dust and charcoal other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the client and existence of their client at the declared address by using reliable independent authentic documents, data or information. It is a matter of record that the appellant never met the exporters/ owner of M/s Fashion World of the alleged consignment. Thus, this appellant failed to verify the antecedent of the exporter and or fulfilling the KYC norm under Regulation 11 of the CBLR, 2013. Further, this appellant had earlier also handled similar consignment of the same exporter, as much as eight times, but had failed to verify or comply with the KYC norms. Thus, the Adjudicating Authority is justified in his observation had the customs broker M/s CSB Logistic, verified the address and antecedents of the exporter, then the alleged export of prohibited goods could have been avoided. Thus, this appellant have acted in conscious disregard of his obligations, resulting in the attempted export of prohibited goods. 12. As a custom Broker deals with the documents and details of export/ import consignment for clearance, and is the representative of their client importer or exporter, before the customs. Accordingly (CSB Logistics), are liable for penal action under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of penalty under Section 112, 114 114AA. Also places reliance on Manoj Kumar Nagar and others vs. CC, New Delhi (SM-Delhi) Final order Nos. 52763-52765 dated 09.08.2018; Also on 2016 (332) ELT 278 (Del.) Commissioner of Customs (Import General), New Delhi vs. Buhariwal Logistics, where it was held that CHA cannot be held liable to penalty for failure to supervise his employees in absence of evidence to show that he was aware of their acts. It was more so as no statement was recorded on behalf of CHA and he was not confronted with statement of his employee, G-card holder, involved in illegal import. If CHA had acted in breach of Regulation 19(8) of Customs House Agents Licensing Regulations, 2004, separate action could be initiated against them under those regulations. However, that by itself could not justify penalty under Sections 112 and 114AA of Customs Act, 1962 in absence of knowledge of illegal acts of agent/ employee being attributed to them. No exculpatory statement of any one and no conscious knowledge. Even CHA is not supposed to verify every aspect of business of a client like an inspector and this appellant was mere business provider to him and had prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative for the Revenue relies on the ruling of the Hon ble Supreme Court in the case of Commissioner of Customs vs. K.M. Ganatra Co.-2016 (332) ELT 15 (SC). 18. Opposing the appeals, learned Authorised Representative appearing for the Revenue relies on the impugned order. He further states that it is evident that Shri Praveen Pant of M/s Cargo Specialist have done the work for M/s Fashion World with open eyes for remuneration, and thus he is a conspirator. Similarly, the other appellants are also rightly imposed penalty as there is admittedly negligence on their part, amounting to collusion in the attempted export of red sanders, a prohibited goods. 19. Having considered the rival contentions, I find that the appellant M/s CSB Logistic (Custom Broker) was duty bound as a Custom Broker under the Regulation of 2014 to verify antecedents and genuineness of the importer exporter code, IEC number, identity of their client and functioning of their client at the declared address by using reliable, independent and authentic documents/ data/ information. As per the facts on record, the Custom Broker did not meet the exporter or the owner of the said Fashion World or the maste ..... X X X X Extracts X X X X X X X X Extracts X X X X
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