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TMI Blog2022 (5) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... - in terms of provisions laid down in foregoing Customs notifications and circular, filing of Transhipment Permit, filing of both Gate Local IGM and Forwarding Note for handing over container to CONCOR for transhipment to ICD, Khodiyar was responsibility of Shipping Line. Thereafter, booking of container from Nhava Sheva for Transhipment to ICD, Khodiyar and for that preparation of Rail Summary till arrival of the container at ICD, Khodiyar was responsibility of CONCOR as transporter.It was not appellant s responsibility and appellant as a Customs Broker had no role to play in terms of Customs Act and CBLR 2018 and he was not authorized to do so by Customs authorities - the CONCOR circulars did not mandate each addressee to inform CONCOR separately. It appears that while deciding the matter Commissioner of Customs has not taken into consideration aforesaid provisions under Customs notification and circulars for transhipment of goods/container wherein specific responsibilities were cast on Shipping Line as declarant and CONCOR both as transporter and custodian and accordingly documentary evidence available on record as well as statement of CONCOR s Chief Manager at ICD, Khodiya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed seal on container - HELD THAT:- It appears from the CONCOR s weighment receipt no. 1155 and findings of inquiry report and offence report of Deputy Commissioner of Customs, ICD, Khodiyar reproduced in forgoing para that while moving container from location I/9/34/A to the notified area placed in ICD, CONCOR s officials were well aware about discrepancy in seal number and weight of container was less than it was mentioned in their own rail summery which they did not disclose to customs authority - it is found from the police investigation report that, when container arrived at ICD at that time not only the weight was less than what was mentioned in the documents but seal number was also different. Further they concluded that theft had not taken place at ICD, Khodiyar which is in the limits of Adalaj Police Station and further CONCOR had also conducted investigation and reported that the theft had not happened in the ICD, Khodiyar premises. Thus, it was negligence on part of CONCOR and its appointed agency that they did not verify seal on container no. CAIU 6840387 and weight of the container was recorded less than it was mentioned in their own documents when it arrived at ICD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f revocation of license is unwarranted which is bad in eye of the law and cannot sustain. Appeal allowed - decided in favor of appellant. - Customs Appeal No.10910 of 2021 - A/10328/2022 - Dated:- 11-4-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Uday Madhukar Joshi, Advocate for the Appellant ShriPrakash Kumar Singh, Superintendent (AR) for the Respondent ORDER M/s International Cargo Services (the Appellant) has filed this appeal for setting aside the Order-In-Original No. AHM-CUSTM-000-COM-008-21-22 dated 12.10.2021, by which the Customs Broker Licence of the Appellant has been revoked. The order also imposed penalty of Rs. 30,000/-. 1.1 Brief facts of the case are that for the import of Cargo of Silver Bars imported by M/s State Trading Corporation, the appellant was appointed as Customs Broker. On arrival of cargo arrived at ICD, Khodiyar, shortage of quantity was noticed, accordingly a show cause notice dated 11.12.2020 issued to the Appellant under the Provision of Customs Brokers Licensing Regulations, 2018. Subsequently, on inquiry in the matter by Investigating officer, the show cause notice was adjudicated v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government. The said circular was regarding automation of movement of containerized cargo from gateway ports to interland ports-SMTP. A conjoint reading of provisions of notifications as well as the said circular clarified that specific responsibilities were cast upon declarant i.e Shipping Line Transporter in this case CONCOR. 2.4 He also argued that apart from strong prima facie case on merit in favour of the Appellant, the proceeding of revocation is not sustainable on the ground of time bar also. The show cause notice which was issued under Regulation 17(1) of the Regulations was dated 11.12.2020. Regulation 17(5) of the regulation specifically provides for preparation of reports by an inquiry officer after recording his findings and submission thereof within a period of 90 Days till the date of issuance of aforesaid show cause notice. Accordingly, considering the said provision, alongwith the issue of show cause notice the report ought to have been submitted on 11.03.2021. However the inquiry report itself is dated 27.03.2021 whereby, the same was time barred in terms of the aforesaid provisions. 2.5 Further, the impugned order having not been passed by the adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elated to violation of Regulation 10 (d) and (m) of the CBLR, 2018 which read as under:- (d) A Customs Broker shall advise his client to comply with the provisions of the Act, other allied Acts and the rules and regulations thereof, and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (m) A Customs Broker shall discharge his duties as a Customs Broker with utmost speed and efficiency and without any delay; The charge is that appellant had not informed CONCOR in advance about arrival of valuable cargo in terms of circulars issued by CONCOR and the high value goods arrived at ICD, Khodiyar on 02.02.2019 and lay at the place of unloading till 04.02.2019, even though the appellant was well aware of the fact that such high value cargo should have been shifted to the designated warehouse immediately on arrival. 4.2 The first ground raised in defence by the Ld. Advocate Shri Uday M. Joshi for appellant in the instant case is that shipping line had informed CONCOR about description of goods as silver bars and complied customs notification, circular and circular issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise requires, - (a) Custodian means a person approved by the Commissioner of Customs for the purposes of section 45 of the Customs Act, 1962 (52 of 1962); (b) declarant means - (i) the person incharge of the conveyance in which the goods are imported, or his agent, or (ii) the person authorised to tranship the goods by the exporter of the goods or by an agent acting on behalf of such exporter; (c) transporter means the Railways, the owner of the vessel, the owner of the aircraft or, as the case may be, the owner of the motor vehicle, in which the goods imported are transported for the purposes of transhipment. 3. Conditions governing transhipment. - Transhipment shall be allowed under these regulations on the conditions that - (a) the declarant makes an application to the proper officer of customs seeking permission for transhipment of the goods imported; (b) the goods imported are mentioned in the import manifest as for transhipment to any major port, to any other customs port or customs airport; Notification 31/98-Cus (N.T) dated. 02.06.1998 Goods Imported (Condition of Transhipment), (First Amendment) Regulations, 1998 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heva to Vadodara which also clearly indicate description of goods as Silver Bars. 4.6 In addition we have carefully gone through (i) Deposition of Mr. Rajib Bhowal, Chief Manager, CONCOR, ICD-Khodiyar recorded by inquiry officer of customs during cross examination. (ii) CONCOR s circulars (iii) Offence report of Deputy Commissioner of Customs, ICD, Khodiyar. (iv) Inquiry report of inquiry officer. 4.7 We find that during the course of cross-examination of Shri Rajib Bhowal, Chief Manager, CONCOR, ICD, Khodiyar, before inquiry officer on 22.02.2021, he had deposed as follows: Q7. Who did the transhipment of Container CAIU6840387 from Gateway port Nhava Sheva to ICD-Khodiyar? Ans.7: The shipping line gives the booking and the gateway port in this case it was JNPT, the booking is done on behalf of the shipping in account of AC Customs, and consigned to concerned shipping line account of DC Customs, and the transshipment from gateway port to ICD Khodiyar is being done by CONCOR. Q9. Please read Regulation 3 (b) of Notification No. 61/95-Cus (N.T) dated. 28.09.1995 and Regulation 2 (c) of Notification No. 31/98-Cus (N.T) dated. 02.06.1998. As per these regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bars ... 4.9 Therefore, from the conjoint reading of our above findings it has provided sufficient evidence that shipping line whom the CONCOR circular was marked through their association ASAA had informed CONCOR in terms of the provisions as prescribed under Customs notification and circular as well as in compliance of CONCOR s circular that container no. CAIU 6840387 was carrying Silver Bars and therefore CONCOR both as transporter as well as custodian was well aware from Nhava Sheva itself that in container no. CAIU 6840387 they were carrying Silver Bars. 4.10 However, we also observe that, in terms of provisions laid down in foregoing Customs notifications and circular, filing of Transhipment Permit, filing of both Gate Local IGM and Forwarding Note for handing over container to CONCOR for transhipment to ICD, Khodiyar was responsibility of Shipping Line. Thereafter, booking of container from Nhava Sheva for Transhipment to ICD, Khodiyar and for that preparation of Rail Summary till arrival of the container at ICD, Khodiyar was responsibility of CONCOR as transporter.It was not appellant s responsibility and appellant as a Customs Broker had no role to play in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein specific responsibilities were cast on Shipping Line as declarant and CONCOR both as transporter and custodian and accordingly documentary evidence available on record as well as statement of CONCOR s Chief Manager at ICD, Khodiyar. It is also found that Commissioner has not produced any substantial evidence to his findings. In our view considering the provisions of Customs notification and circulars and the documentary evidence on record, CONCOR as a transporter as well as custodian were well aware that they were carrying Silver Bars in container no. CAIU 6840387, therefore in the present case intimation by any party including Customs Broker whom CONCOR circular was addressed have no relevance. 4.15 In view of our above findings appellant being Customs Broker cannot be held responsible in any manner under Regulation 10 (d) of CBLR 2018. 4.16 The second ground raised in defense by the Ld. Advocate Shri Uday M. Joshi for appellant in the instant case are that, CONCOR as transporter of container from gateway port to ICD and as a custodian at ICD, Khodiyar was well aware that they were carrying Silver bars in container no. CAIU 6840387. Appellant further submitted that it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (b) Customs Cargo Services provider means any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the said Act; 6. Responsibilities of Customs Cargo Service provider: (1) The Customs Cargo Service provider shall - (a) ....; (b) ....; (c) .; (d) demarcate separate areas for unloading of imported goods for their storage with respect to the category of importers, nature of goods, place of destination, mode of transportation or any other criterion as the Commissioner of Customs may specify having regard to the custody and handling of imported goods in a customs area; (e) .; (f) .; (g) .; (h) not permit any import cargo to enter the customs area or be unloaded therein without the import report or the import manifest having been filed with the Deputy Commissioner or Assistant Commissioner of Customs; (2) The Customs Cargo Service provider approved for custody of imported or export goods and for handling of such goods shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion officer who is present in the yard are responsible for entire yard activity which also include unloading from the trains. The tally of the containers while loading/unloading to/from rail are being done through CONCOR appointed surveyors who were given the task of recoding details and reporting to CONCOR and subsequent updation in system . Q.23 By virtue of regulation 6 (1) (h) of Handling of Cargo in Customs Area Regulation, 2009 is a responsibilities not cast on custodian that is a CONCOR to verify IGM before allowing unloading of container from the train.? Ans.23 If the customs authorities have any query regarding any container or cargo they intimate us separately and suitable reply is given to them . Q.26 Is it only CONCOR which does unloading of containers from the train, there movement and placing the same within ICD, premises? Ans. As per HCCAR regulation 2009, CONCOR has appointed various service providers for operation of the terminal. For handling of containers and cargo, CONCOR had appointed handling contractors for unloading/loading internal movements of containers in the yard, stuffing/destuffing in warehouses. Placement for examination / d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verify Transhipment documents i.e IGM, Transhipment Permit as well as their own Rail Summary from Nhava Sheva to Vadodara before allowing unloading of container no. CAIU 6840387 from the train and place the container at demarcated area according to the nature of the goods, whereas in present case CONCOR had left the said container dormant at the first location I/9/34/A from 02.02.2019 to 04.02.2019 knowing the fact that both IGM and Transhipment Permit as well as Rail Summary from Nhava Sheva to Vadodara categorically indicated goods as Silver Bars and therefore container should have been placed by CONCOR as a custodian immediately after its unloading from train to its demarcated place which they did not. 4.25 However, conjoint reading of aforesaid provisions, deposition of Chief Manager, CONCOR and Deputy Manager, CONCOR, ICD-Khodiyar as well as offence report of Deputy Commissioner of Customs and CONCOR s public tariff it is clear without any doubt that it was sole responsibility of CONCOR as a custodian at ICD, Khodiyar to unload the container from train and further placement of that container at demarcated area according to the nature of goods. It was not appellant s respons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to process documents with Customs authority. The bill of entry of the subject shipment was cleared by Customs authority under RMS without assessment and examination , therefore they were not authorized to deal with the cargo unless it was instructed by Customs authority.In this case no such instruction was given by Customs authority to appellant. In addition they relied upon para V-d of their agreement with Brinks India Pvt. Ltd, door to door services provider (forwarder) in this case as well as Statement of Mr. RajibBhowal, Chief Manager, CONCOR, ICD-Khodiyar recorded by inquiry officer during cross examination, offence report of Deputy Commissioner of Customs, ICD, Khodiyar, dated 23.10.2020, statement of Mr. Vijay Parmar - surveyor appointed by CONCOR, ICD-Khodiyar recorded by Adalaj Police Station on 11.02.2019, Deposition of Mr. Peter George Parker, from Sea Trade Shipping, Ahmedabad who was agent for Regional Container Lines (RCL Agencies (India) Pvt. Ltd) recorded by inquiry officer during cross examination on 05.03.2021, Investigation Report of Police Inspector, Adalaj Police station dated. 13.07.2019, Investigation Report of Chief Manager, CONCOR, ICD, Khodiyar dated. 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, before inquiry officer on 22.02.2021 he had deposed: Q.20 Can you in brief explain the procedure undertaken by CONCOR at the time of unloading the container from the train at ICD-Khodiyar? Ans. The CONCOR surveyor verifies the details of the containers and record it in a register and after that he arrives at the rail counter punches the data to release the train from the system . Q.22 What are the responsibilities of official of CONCOR who are present at the time of arrival of train into ICD-Khodiyar and unloading of container in ICD-Khodiyar? Ans. The yard operation officer who is present in the yard are responsible for entire yard activity which also include unloading from the trains. The tally of the containers while loading/unloading to/from rail are being done through CONCOR appointed surveyors who were given the task of recoding details and reporting to CONCOR and subsequent updation in system . Q.24 Did the surveyor provide survey report to CONCOR regarding aforesaid container which arrived vide train no. BKHTX22136 at ICD-Khodiyar on 02.02.2019 and mentioned regarding any discrepancy regarding seal no. and weight of aforesaid container? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours. CONCOR s officials have recorded seal number EAR 38620 in the said weighment slip. 4.35 It appears from the CONCOR s weighment receipt no. 1155 and findings of inquiry report and offence report of Deputy Commissioner of Customs, ICD, Khodiyar reproduced in forgoing para that while moving container from location I/9/34/A to the notified area placed in ICD, CONCOR s officials were well aware about discrepancy in seal number and weight of container was less than it was mentioned in their own rail summery which they did not disclose to customs authority. 4.36 The Police investigation report and CONCOR s report are relevant in this matter which are reproduce below. 4.37 We find from the police investigation report that, when container arrived at ICD at that time not only the weight was less than what was mentioned in the documents but seal number was also different. Further they concluded that theft had not taken place at ICD, Khodiyar which is in the limits of Adalaj Police Station and further CONCOR had also conducted investigation and reported that the theft had not happened in the ICD, Khodiyar premises. 4.38 We find from the above facts on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake physical delivery of each shipment directly from custodian after final clearance for delivery of goods by Customs Authority and after proper verification at notify place by Custodian at port of import 4.42 Further, we find that importer has issued authority letter to Appellant wherein appellant s appointment as custom broker by importer was specific and limited to process its documents as provided by it for customs clearance with customs authority as licensed customs house agent only and it is not in dispute that bill of entry in the instant case was cleared under RMS without examination. Therefore after conjoint reading of appellant s agreement with Brinks and importers authorization we find that appellants responsibility as customs broker was ceased once the bill of entry was given out of charge by customs authority and it was Brinks who was supposed to take delivery of goods directly from custodian. 4.43 We find no merit in learned Commissioner s finding that appellant s representative had not verified the seal before it was cut. Since appellant s responsibility as customs broker was ceased once the bill of entry was given out of charge, then presence of his represen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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