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TMI Blog2022 (1) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of cigarette as per the import documents. Further, the importer has produced the exemption certificate dated 16.08.2018 in form 10A Customs Duty Exemption Certificate in respect of quota items (liquor/ Cigarettes/ flood stuff) imported for the personal use of entitled members of Diplomatic Mission. Thus, the finding of the Commissioner in the impugned order is erroneous that there is violation of Regulation 10(d)(e) and (f). Penalties under Section 114AA and 117 of the Customs Act, 1962 - HELD THAT:- It is inconceivable that a CHA, whose job is only to file bill of entries, making the proper declarations as per the information given by the importer and to assist an importer for clearance of the goods, would be aware of the technical laws of production of various licences for an import of a particular item, so as to invoke penal action against him. In view of the findings of the learned Commissioner (Appeals) in the main show cause notice, wherein the said Diplomat was also a co-noticee, the appellant Customs Broker have been granted clean chit with full relief. Accordingly, the cause of action under the CBLR does not survive. Appeal allowed - decided in favor of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly Sedar Sarr, First Secretary, Embassy of Republic of Senegal. The invoice contained various food stuff items, cigarettes and cosmetics. (ii) Copy of BL No. 03700205 /0007084 /19 dated 14.08.2018 bearing stamp of Senegal Embassy and External Affairs Ministry, issued by M/s Caravel Lines Pvt. Ltd., The said Bill of Lading mentioned only 1530 ctn. of cosmetics and 797 ctn. of food stuff. There was no mention of cigarettes in the Bill of Lading. (iii) Original Customs Duty Exemption Certificate bearing Sr. No. 03/AW/08/2018 dated 16.08.2018 duly attested by Protocol Officer (Special), MEA vide Endorsement No. 1158 dated 23.08.2018 valid till 19.04.2019. The Exemption Certificate also mentioned only food supplement/ Cosmetics in the description column alongwith the Invoice No. and date. There was no mention of cigarettes in the exemption certificate. (iv) Self-declaration by the Embassy of Senegal signed and stamped with the stamp of Embassy by Mr. Andre Waly Sedar Sarr, First Secretary, Embassy of Senegal in India and duly attested by MEA that the goods being imported do not contain any prohibited / restricted items and strictly for official/ personal use. (v) Seneral Emb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirming that the Exemption Certificate dated was attested for food stuff as per quota allotted by the Ministry to the Embassy and not for Cigarettes. A scanned copy of Invoice was received in the Protocol Special Section, MEA with respect to Exemption Certificate from the Embassy of Senegal was forwarded with the e-mail. It was also requested in the e-mail to send the copy of the invoice submitted to the Customs. The contents of the Invoice copy forwarded by the MEA through e-mail was the same as were the contents of the invoice submitted in the import docket by the Customs Broker for clearance of the goods. (ii) Another e-mail dated 14.09.2018 was received from Sh. Ashish Gupta, DCP(P), MEA with a request to share the copies of the documents particular the packing list submitted by the Customs Broker. It was also conveyed to keep the further action on hold as the issue needed further examination at Ministry‟s end. (iii) An e-mail dated 19.09.2018 was forwarded to the MEA informing them that goods belonging to Embassy of Senegal were lying at this port for a longer period and in this case the custodian and shipping line may ask for detention and demurrage charges. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted to be claimed by mis-declaring the facts. 8. Since the cigarettes of Gudang Garam brand and whey protein and other food supplements were found mis-declared in terms of description as well as quantity and this contravention involved Sh. Andre Waly Sedar Sarr, who enjoys Diplomatic Immunity, therefore, the matter was conveyed to the Commissioner (Customs), CBIC, North Block vide letter C. No. VIII(B)40/ICD-GH/BE No. 885732/632/ 18-19/190-191 dated 09.11.2018 with a request to take up the matter with MEA and for issuance of suitable instructions in this regard for taking further course of action as the seizure and disposal of these goods. 9. Subsequently, the Board letter dated 30.11.2018 issued vide F. No. 458/145/2018-Cus.V directed appropriate penal action as per extant provisions may be initiated in respect of the subject goods. 10. Accordingly, a letter C. No. VIII(B)40/ACD-GH/BE No. 885732/ 632/18-19 dated 03.12.2018 was written to the Deputy Chief of Protocol (Privileges), Ministry of External Affairs to co-ordinate with the Embassy of Senegal to attend the seizure proceedings and drawl of samples of item No. 1 for NOC from FSSAI/ AQCS in terms of Board‟ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above consignment is not fulfilling the import health guidelines requirement under the schedule of the Notification No. S.O. 2666(E) dated 16.10.2014. The health status of the consignment is doubtful as imported without official health certificate mentioning the health status including Fit for human consumption . There is no provision of testing to regularize the improperly imported consignments. Hence, in exercise of the power conferred by Section 3A of the Live Stock Importation Act, 1898 (9of 1898) under the Notification no. S.O. 2666 dated 16.10.2014, Para 501) and (ii), the consignment is ordered for immediate deportation/destruction (Rejected) as the case may be under intimation to AQCS, New Delhi in larger National Interest. 14. The above placed finding in Para 11 13, were conveyed to the Embassy of Senegal by the MEA vide No. D.VI/451/2052)/2018 dated 27.12.2018 that the Gudang Garam brand Cigarettes have been seized under Section 110 of the Customs Act, 1962 and the remaining food supplements and other food stuff could not be cleared from the Animal Quarantine angle to enter into India. Thus, the MEA suggested Embassy of Senegal to consider re-exporting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 governs the Export/Import of Restricted goods/Services, which says that Any goods / service, the export or import of which is 'Restricted' may be exported or imported only in accordance with an Authorization/Permission or in accordance with the procedure prescribed in a Notification / Public Notice issued in this regard . Further, Section 2(33) of the Customs Act, 1962 defines the term 'prohibited goods' and provides that prohibited goods means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but did not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. It appeared that the food supplements and Cigarettes found in the subject consignment did not conform the regulations and provisions of Livestock Importation Act, 1898 and COPTA, 2017, respectively, therefore, the imported goods i.e. Gudang Garam Cigarettes food supplements are nothing but prohibited goods under the provisions of Section 11(2)(s) of the Customs Act, 1962. Thus it appeared that Shri Andre Waly Sedar Sarr was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o got was sued the subject Exemption Certificate on the basis of an invoice, wherein only name Gudang Garam was mentioned and concealing the description of the goods i.e. Cigarettes. This act of his also corroborate illicit intents of Sh. Andre Waly Sedar Sarr to evade the applicable customs duty on the basis of manipulated documents and thereby rendered himself liable to penalty under Section 114AA of the Customs Act, 1962. 7. In view of the aforementioned proceedings and order-in-original, it appeared to Revenue that Sh. Rahul Bhardwaj, the Customs Broker is also guilty of mis-declaration alongwith the importer as he has knowledge that Gudang Garam brand was a brand of cigarette. It further appeared to Revenue that the appellant being the Customs Broker must have knowledge that exemption can only be availed under some exemption circular/ policy. In the instant case, cigarettes is not mentioned in the relevant exemption certificate, yet he has filed the subject Bills of Entry claiming exemption for cigarette also. Further, the appellant failed to bring the relevant facts to the knowledge of the Department. Further, the Embassy of Senegal have also taken the stand in reply to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, The Foreign Exchange Management Act, The Trade Marks Act, Arms Act, Drugs and Cosmetic Act etc. Prohibitions under those Acts will be treated as prohibitions under the penal provisions of customs Act rendering such goods liable to confiscation under section 111(d) of Customs Act (for import) and 113(d) of Customs Act (for export). (3) I am aware that some of the prohibitions and restrictions for both imports and exports are listed below: Prohibited items Fire arms............... Restricted items. Arms and Ammunition...... (4) (iv) That import of liquor, cigarettes, food stuffs and provisions are in accordance with the prescribed norms of MEA. 9. It is further urged that the stand taken vide letter dated 01.03.2019 that they were not aware of any other orders/ laws which forbade them to claim the offending goods. Further, it is also submitted that copy of the said letter was not provided to the appellant to meet the allegation of the Revenue. It is further urged that import of cigarette is not prohibited items, but restricted. Thus, it is incorrectly held that the appellant have violated the provisions of Regulation 10(d) of CBLR, 2018. Further, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal use and there is no exclusion for cigarettes. The fact that the exemption certificate did not cover cigarettes was informed by MEA only on 14.09.2018 on specific query from the Department and the appellant had no means to know the cigarettes were not covered by the said exemption certificate. In fact, had the declaration been made only GUDANG GARAM (60*10), QTY 50, there would have been no means to ascertain whether it was cigarettes or not. Thus, there is no fault or any violation in declaring item GUDANG GARMA (60*10), QTY-50 as CIGARETTES in bill of entry. 5.4 There is another finding in the order that despite knowing that the consignment comprised of food stuff, the appellant did not forward the same for ADC/AQCS for NoC. To my mind this finding is also incorrect insofar as the appellant had declared the goods and attached all relevant documents. If any NOC was required, the same was responsibility of the assessing officer. It is not the case that the mis-declared or mis-classified goods to escape ADC/AQCS NoC. 5.5 It has been held that the appellant violated the provisions of Regulation 10(d) and 10(e) of Customs Broker Licensing Regulations 2018. However, this fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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