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TMI Blog2022 (5) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Commissioner proceeded against the appellant is that Shri Ramesh Mange had not met or contacted ABCCPL while filing the checklists for export in their name and has thus allowed his CB licence to be used by M/s. RSS Shipping Pvt. Ltd. which was involved in uploading the shipping bill data prepared by them on ICEGATE portal. On the basis of above, the Commissioner concluded that the evidence on record clearly indicated that the Customs Broker was working in a manner to facilitate fraud and had violated the obligation casted upon them under the CBLR,2018. On the same set of evidences, two different findings have been recorded by the Commissioners at Nagpur and Mumbai. Such a discrimination which leads to revocation of licence of one Customs Broker and permits them to operate without any hindrance is nothing but discrimination contrary to Article 14 of the Constitution - Further the procedure for export starts with filing of checklists on ICEGATE portal. If the same is not backed by the proper shipping bill within 15 days, the checklist gets purged. It is not understood how the issuance of checklist by the Customs Broker was a fraud under the Customs Act. Even if the same was an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk Logistic without ensuring the receipt of merchandise at the port and before uploading the data on the ICEGATE portal. They also facilitated issuance of House Bills of Lading from the freight forwarding companies, i.e. M/s. Seamax Logistics Ltd. and M/s. United Container Lines Pvt. Ltd. M/s. RSS Shipping Pvt. Ltd. was operating the CHA licence in the name of the appellant herein and M/s. Harin Transport. 2.4 The checklists and the house bill of lading have been used by ABCCPL to defraud the Banks. It was further noticed that though the arrival of merchandise at the designated port of shipment slowed very much, the Customs Broker continued to hand over the checklists and house bills of lading to ABCCPL despite having lot of pending shipments against already issued checklists. 2.5 On the basis of above, immediate action was taken against the Customs Broker and his licence was suspended vide order No. 36/2019-20 dated 27.08.2019 and subsequently revoked vide order No. 50/2019-20 dated 04.10.2019. 2.6 A show cause notice dated 28.10.2019 was issued to the appellant asking them as to why their licence should not be revoked, security deposit not forfeited and/or penalty should not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bank finance on export bills and presented the place at the time of documents as if the exports had taken place. By doing so, M/s. ABCCPL induced the banks to grant advance against the export bills by negotiation/discount (crediting of funds into the account) and committed the act of "Cheating". I find that Shri Sanjeev Verma, Director of M/s. RSS Shipping P Ltd. in his statement dated 24.03.2018 and 27.07.2018 recorded on oath as per provisions of Section 217(4) of the Companies Act, 2013, stated that they were doing CHA work under the oral authority of M/s. Ramesh Transport Company; that they had only oral authority from Shri. Ramesh P. Mange, Proprietor of CB M/s. Ramesh Transport Company; that they used to make the shipping bill data and forward the same to the office of M/s. Ramesh Transport Company, for uploading the same on the "ICEGATE of Customs Department, which they used to do from their office; that they took responsibility for all of them Le. M/s. Seamax Logistics Ltd, M/s 38 Shipping P Ltd. (themselves) and M/s ABCCPL were responsible for the exports which did not happen and the BLs were wrongly stamped as "Shipped on Board". Hence, it is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for onward submission to M/s. ABCCPL to enable them to get the export bills discounted with the banks. I find from investigation that despite lapse of more than 3 months (in many cases more than 6 months) for completion of exports for already issued checklists with House BLS/MTDs, the CB M/s. Ramesh Transport Co. did not make effort to verify the genuineness of the exporter and their correctness of their Shipping Bills, BL and MTDs. The CB M/s. Ramesh Transport Company knew the fact that exports had not been taken place for already issued House BL/ MTD and the exporter was continuously asking for fresh checklist, strangely it did not raise suspicion in the mind of an experienced CHA. Dove acts of CB show connivance on their part to perpetuate the fraud by M/s. ABCCPL and Shri Ashish Jobanputra on banks. The CB clearly, knowingly aided and abetted the offence and facilitated the same through deliberate layering of intermediaries as he was part of the gang of the fraudsters. It is clearly evident that the Customs Broker deliberately processed the Checklist as per the directions of M/s. RSS Shipping without exercising due diligence to ascertain the correctness of the information and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h P. Mange, Partner of CB M/s. Ramesh Transport Company (CB No. 11/1018), had not met or contacted the IEC holder of M/s ABCCPL, while filing checklist for exports in the name of M/s. ABCPPL. Shri Ramesh P. Mange, proprietor of the CB M/s Ramesh Transport Company allowed his CB Licence to be used by M/s. RSS Shipping P. Ltd., who was involved in the fraud, for uploading shipping bills data prepared by them on the "ICEGATE of Customs Department. The investigation revealed that M/s. ABCCPL connived with CB M/s. Ramesh Transport Company, M/s. RSS Shipping other CBs and freight forwarding companies concealed the facts that the exports of merchandise did not take place at the time of negotiation/availment of bank finance on export bills and presented the documents as if the exports had taken place. By doing so, M/s. ABCCPL induced the banks to grant advance against the export bills by negotiation/discount (crediting of funds into the account) and committed the act of "Cheating". The CB M/s. Ramesh Transport Company knew the fact that exports had not taken place for already issued House BL/MTD and the relevant documents were utilized for obtaining bank credit (without comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t their authorized employees were looking after the clearance work at Mundra Part To substantiate their stand, the CB firm provided details of the employees posted at Mundra Port and provided copies of their I-Cards issued by Customs Authorities As far as knowledge of fraud, the Charged CB submitted that they perform their duties under the framework of CBLR, 2018 and the Customs Act, 1962 and it is not in their control to monitor what the exporter is doing with the Checklists forwarded to them through E-Mails." 4.5 In para 11 of the impugned order, reproduced above, the only ground on which the Commissioner proceeded against the appellant is that Shri Ramesh Mange had not met or contacted ABCCPL while filing the checklists for export in their name and has thus allowed his CB licence to be used by M/s. RSS Shipping Pvt. Ltd. which was involved in uploading the shipping bill data prepared by them on ICEGATE portal. On the basis of above, the Commissioner concluded that the evidence on record clearly indicated that the Customs Broker was working in a manner to facilitate fraud and had violated the obligation casted upon them under the CBLR,2018. 4.6 On the same set of evidences, tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the Tribunal. The least that the Tribunal could have done in the interest of 'uniformity' was to call upon the Revenue Authorities to explain why they were making a distinction between the appellants product and that of M/s. Chandulal K. Patel without subjecting the appellants' product to any chemical analysis. 5. In their appeal from the decision of the Tribunal before us the appellants have again raised the issue that the Tribunal should have considered the fact that the appellants and Chandulal K. Patel & Co's products were identical and were the outcome of an identical process, and that since the latter had been exempted from paying any central excise duty on the ground that their product was classifiable under Tariff Heading 24.04, the appellants should get the same benefit. 6. At the hearing today we sought an explanation from the learned Counsel appearing on behalf of the Revenue Authorities as to why different stands had been taken in the cases of M/s. Chandulal K. Patel & Company and the appellant. Since the matter had not been squarely dealt with on facts at any stage by any of the authorities below, it was not possible for learned Counsel to give us the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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