9911796707
TMI Blog2021 (10) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... 203/6204The export consignments were examined by the officers and on noting certain discrepancies, samples of the goods were forwarded to the Textile Committee at PUB, Nhava Sheva. Report of the Textile Committee dated 15.3.2017 showed that the goods declared as blended were actually found to be cotton thereby change in the CTH (6207, 6208, 6209) as well as the admissiblity of drawback and rebate of State levies (ROSL). As part of investiagtgion, statements were recorded. On 22.5.2017, the goods were provisionally released to the exporter on furnishing bond equal to 100% of the FOB value of the goods and bank guarantee of Rs. 35 lakhs. (b) On completion of investigation, Show Cause Notice dated 22.8.2017 was issued to the exporter as well as the appellant herein under section 124 of the Customs Act, 1962 proposing rejection of the declared FOB value of the goods, redetermination of the same, rejection of claim of drawback at Rs. 30.74 lakhs and redetermination of the same at Rs. 17.99 lakhs, rejection of claim of rebate of State levies at Rs. 9.69 lakhs and redetermination of the same at Rs. 6.81 lakhs, confiscation of the goods under section 113(i) and 113(i)(a) of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent Show Cause Notice has been issued on the very same set of facts and allegations. The statement of the Power of Attorney holder of the appellant was recorded on 17.3.2017 under section 108 of the Customs Act, 1962. It is stated by him that the exporter met him in person and requested for clearance of the export cargo after handing over all the relevant documents including KYC documents. On receipt of the export documents, he instructed Shri Bhagwan Patil, employee of the appellant to scrutinize the documents and file checklist with respect to 12 shipments. It is further stated by him that he was present during the examination of the cargo by the officers and also participated in the panchnama proceedings. There is no allegation that the exporter did not exist or that his address of IEC is fake. The appellant has been careful and diligent as the KYC documents were proper and authorization from the exporter was also obtained. The discrepancy is with regard to only misclassification and overvaluation of the goods. The appellant had gone by the details given by the exporter in the shipment documents. 4. Further that mis-declaration and overvaluation so as to claim higher drawback ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has limited role to decide valuation or classification etc. " 6. The operative portion of the said order reads as under:- "I impose penalty of Rs. 25,000/- (Rupees Twenty five thousand only) on M/s.Liyakath Shipping and Logistics Pvt. Ltd. (11/2012), Custom Broker under Section 158 (2) (ii) of the Customs Act, 1962 for contravention or failure to comply with regulations under CBLR, 2013." 7. The appellant had paid the above penalty of Rs. 25,000/- only to buy peace and to avoid litigation. However, on the very same allegations, the present Show Cause Notice has been issued by the Chennai Commissionerate. The present proceedings are said to be initiated under CBLR, 2013 as per the Show Cause Notice. 8. When the allegations contained in the present Show Cause Notice have already been raised in the earlier Show Cause Notice issued by the Nhava Sheva Commissionerate and culminated by the Order in Original dated 3.11.2017, wherein the appellant has been penalized under section 158(2)(ii), the penalty imposed in this proceeding amount to double jeopardy. The appellant is being penalized for the very same violations in the second round of proceedings which is against the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practically carried out in a general manner. The operations in Mumbai and Nhava Sheva are carried out through Power of Attorney who is a qualified person as per the CBLR. The statement under sec. 108 of the Customs Act, 1962 as well as the affidavit filed by the said Power of Attorney before the Inquiry Officer clearly states that they had undertaken the export work of M/s. Neel Exim only after proper interaction with the exporter in person. They received the document from them and conducted proper verification in regard to the KYC documents. The processing of shipping bills was done by employee Shri Bhagwan Patil on the instructions of the Power of Attorney holder who is a qualified person. 11. It is also not discernible from the inquiry report or from the discussions made by the adjudicating authority as to what is the reason to hold that there was improper supervision of the employees by the appellant to hold that Regulation 17(9) of CBLR, 2013 has been violated. Shri Bhagwan Patil who is his active employee, works only as per the instructions of the Power of Attorney of the appellant. The alleged improper supervision has not in any way resulted in non-fulfillment of the obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for export documents were filed on ICEGATE from the appellant's office. The employee Shri Bhagwan Patil also knew the password. The appellant has allowed a person who is not properly qualified to use the password for filing documents on ICEGATE. This is clear violation of Regulation 17(9) of CBLR, 2013. In para 5.3 of the inquiry report, the inquiry officer has noted that Shri Bhagwan Patil does not possess any relevant qualification for the job of customs clearance. This is enough to establish that appellant has violated Regulation 17(9) of CBLR, 2013. There is no proper supervision by the appellant on the business transacted in Mumbai and only a monthly report is being submitted by the Power of Attorney. The learned AR argued that the appellant having permitted unauthorized use of ICEGATE access and also recruiting persons without relevant qualification for customs clearance procedures and non-maintenance of proper records of the employees working in their office reflect the lack of supervision of the appellant as obligated under the Regulations. He submitted that the impugned order does not call for any interference. 15. Heard both sides. 16. The foremost contention raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act, 1962. (g) Why for the act of omission and commission which has made the said goods liable for confiscation, the penalty should not be imposed on M/s.Liyakath Shipping and Logistics Pvt. Ltd. (11/2012), Custom Broker under Section 114 (iii), 158 (2) (ii) of the Customs ACT, 1962. 18. The above Show Cause Notice culminated in the Order in Original passed by the adjudicating authority at Nhava Sheva Commissionerate which reads as under:- "Investigation revealed that; xxxx xxxx xxxx xxxx 8.18 Shri Ellish Paul Parampog holder of power of attorney of M/s.M/s.Liyakath Shipping and Logistics Pvt. Ltd. (11/2012) had admitted that he had instructed an unauthorised person who was not holding the Customs Pass or any qualification under CB, to scrutinise the documents and file the checklist of the said 12 shipments on ICEGATE from his office. As a CB, M/s.Liyakath Shipping and Logistics Pvt. Ltd. (11/2012) has failed to scrutinize the documents given by the exporter properly and classify the goods under correct CTH. They also failed to ensure proper admissibility of drawback and ROSL benefits against the said 12 shipping bills. As a Customs Broker he was expected to know the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees in respect of applications, amendment of documents, furnishing of duplicates of documents, issue of certificates, and supply of statistics, and for rendering of any services by officers of customs under this Act; (ii) that any person who contravenes any provision of a rule or regulation or abets such contravention or any person who fails to comply with any provision of a rule or regulation with which it was his duty to comply, shall be liable to a penalty which may extend to fifty thousand rupees" 20. The above section deals with the penalty that can be imposed for contravention of any provision of a rule / regulation. When such violations have already been adjudicated against the appellant in a previous proceeding, the very same are made the subject matter of this subsequent proceedings by which the appellant has been held guilty and punished. 21. The learned counsel has relied on the decision in the case of K. Padmanabhan Logistics Pvt. Ltd. (supra) wherein the question that was considered by the Tribunal was whether when jurisdictional Customs Commissionerate of another customs station has issued an order of prohibition under Regulation 23, a parallel action of suspens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted only on the instructions of the Power of Attorney holder of the appellant at Nhava Sheva Port and therefore it cannot be said that the appellant has violated Regulation 17(9) of CBLR, 2013. We cannot agree. It is an admitted fact that Shri Bhagawan Patil was an employee of the appellant. It is also an admitted fact that he did not possess proper qualifications to engage in customs clearance activities. Regulation 17(9) of CBLR, 2013 reads as under:- "17(9) The Customs Broker shall exercise such supervision as may be necessary to ensure the proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment." 23. The appellant as a Customs Broker is obliged to recruit persons who have proper qualification and only engage such persons to deal with clearance of goods. The appellant having allowed Shri Bhagawan Patil to use the password for filing documents on the ICEGATE has in our view, indeed violated Regulation 17(9) of CBLR, 2013. 24. The question then is whether such infraction is so grave to impose a punishment of revocation of license and forfeiture of security. This has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
