9911796707
TMI Blog2022 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... revoke the CB Licence No. 11/1830 under Regulation 14 of CBLR, 2018. (iv) I hereby order that the CB surrender the original Licence as well as all the 'F', 'G' & 'H' cards issued there under immediately. 2. This order is passed without prejudice to any other action which may be taken against the Customs Broker and their employees under the Customs Act, 1962, or any other act for the time being in force in the Union of India." 2.1 On the basis of specific intelligence, Officers of Preventive Section, Customs (Prev.), HQ, Jamnagar seized consignments of Wall paper and similar wall covering consisting of paper coated or covered on the face side, Wall paper grained embossed coloured falling under CTH 48142000 lying at Container Freight Station of M/s. Contrans Logistics Pvt. Ltd. Pipavav in respect of exporters i.e. M/s. Vicky Sales and M/s. Jagdambe Export, Delhi, for the reason of them being overvalued. 2.2 Commissioner of Customs (Preventive), Jamnagar vide letter dated 10.07.2019 proposed to initiate action against Customs Broker M/s SSS Sai Forwarders Pvt. Ltd. for violation of CBLR, 2018 in the investigation being carried out in the case of mis-declaration of export goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to take CGST/SGST credit on the inflated invoices issued by their supplier and subsequently, these goods were cleared for export on payment of IGST from their accumulated IGST credit account and claimed refund of the same. On examination during investigation it was found that quality and condition of goods was not corresponding to the FOB value declared in the Shipping Bills. The FOB value declared in the Shipping Bills was overvalued and the same was in contravention of provisions of Customs Act, 1962. The proceedings for revocation of the CB license in the present case have its foundation in this case. Interestingly after completion of investigation of the case, the CB, whose license has been revoked has not been made noticee in the Show Cause Notice issued by the Jamnagar Customs. 4.3 It is also interesting to note few paragraphs from the Show Cause Notice issued by the Jamnagar Customs: "2. Whereas it appears that M/s. Vicky Sales, Shop No. 2, Ground Floor, Plot No: 5,Block - A, Milap Nagar, New Delhi 110 059, holders of Import Export Code No. AOUPV9466K and GST Registration No: 07AOUPV9466KIZM, through their customs Broker M/s. SSS Sai Forwarders Private Limited, file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Bill Invoice Number & Date C&F Value of goods (In USD) DECLARED F.O.B. (In INR) IGST involved (In INR) Number Date 1 4339935 22- 05- 19 JE/EXP/ 2019- 20/ 001 dated 03-05-19 2,05,200/- 1,42,43,677.50 25,67,052/- 2 434006 22- 05- 19 JE/EXP/ 2019- 20/ 002 dated 03-05-19 2,05,200/- 1,42,43,677.50 25,67,052/= 3 4395073 24- 05- 19 JE/EXP/ 2019- 20/ 003 dated 03-05-19 2,05,200/- 1,42,43,677.50 25,67,052/- 4 4395193 24- 05- 19 JE/EXP/ 2019- 20/ 004 dated 03-05-19 2,05,200/- 1,42,43,677.50 25,67,052/= Total ---------→ 8,20,800/- 5,69,74,710.00 1,02,68,208/ - (Sl. No. 17 to 32of Annexure "A" of Show Cause Notice) 4. Whereas during the course of assessment in the case of Shipping Bills, tabulated at Para 2 above, filed by M/s. Vicky Sales it appears that the goods meant to be exported were overvalued therefore vide letter F. No, VIII/48-02/Misc-Export Valuation/2019-2020 dated 25-05-2019 (Sl. No. 33of Annexure "A" of Show Cause Notice they were asked to produce for the period from January, 2019 to April, 2019: (i) GST Returns viz. GSTR-3B, GSTR-1, GSTR-2, etc; (ii) purchase invoices along proof of payment made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. Vicky Sales and M/s. Jagdambe Exports. 11.1 Whereas, it appears that statement of Shri Iqbal Satarbhat Shekda, "H" card holder of M/s. Premji Kanji Masani Private Limited, was recorded on 30-05-2019 (Sl. No. 88 of Annexure "A" of Show. Cause Notice), under Section 108 of the Customs Act, 1962, before the Superintendent of Customs House, Gujarat Pipavav Port Limited, Pipavay wherein he inter-alia stated that his firm had filed various shipping bills, during the period from March, 2019 to May, 2019, on behalf of M/s. Shiv International, M/s. Vicky Sales and M/s. Jagdambe Exports for exports of Wallpaper; that these exporters were introduced to them by one Shri Yogesh Kanubhai Goradia (Mobile No. 97686-38575), resident of Rajula who work as forwarders i.e. he works as middleman between importer/exporter and the Customs House Agent; that he knows Shri Yogesh Kanubhai Goradia since 6 to 7 months as previously he had given them work of clearance of import cargo; that upon being contacted by Shri Yogesh Kanubhai Goradia he had directed him to contact his G - Card Holder Shri Prakash R. Masani; that all work regarding dealing of export documents and cargo is handled by their Vera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er received in cash as well as by account transfer; that the payment to CHA is done by him in cash as well as by account transfer. 12.8 Upon being asked Shri Yogesh Kanubhai Goradia stated that Let Export Order has been granted for those shipping bills filed by M/s. Rishad Shipping & Clearing Agency Private Limited85M/s. Premji Kanji Masani Private Limited however no Let Export Orders have been passed in the case of shipping bills filed by M/s. SSS Sai Forwarders Private Limited. 12.9 Shri Yogesh Kanubhai Goradia, upon being asked, stated that it his practice to verify the genuineness of the export only on the basis of the KYC which are received either by email or courier; that he receives the original documents from exporter either by courier or with goods via truck; that the scanned copies are received by email or WhatsApp from forwarder, that there is no direct communication with the exporter; all the communications are through Shri Sandeep Dawar and Shri Vijay by email, mobile phone or WhatsApp. 12.10 Shri Yogesh Kanubhai Goradia stated that the cargo of wallpaper covered under Vicky Sales Invoice Nos. (i) VS/Exp/19- 20/001 (ii) VS/Exp/19-20/002 (iii) VS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962 therefore the entire lot of good packed in 720 cartons, weighing 14,400 kilogram net, having declared F.O.B. value of Rs. 11,39,49,416/- seized under provision of Section 110 ibid and were handed over to custodian i.e. M/s Contrans Logistics Private Limited for safe custody. The above proceedings were recorded' under panchnama dated 31- 05-2019(Sl. No. 93 of Annexure "A" of Show Cause Notice). 29.1 Statement of Shri Kanhaiya Agarwal, Director of M/s. SSS Sai Forwarders Private Limited was recorded on 19-06- 2019 (Sl. No. 154 of Annexure "A" of Show Cause Notice) under Section 108 of the Customs Act, 1962 before the Superintendent (PI), Customs (P), Hq. Jamnagar wherein he inter-alia after perusing his earlier statement dated 11-06-2019 stated that he agrees with the contents thereof and in token thereof he placed his dated signature thereon. 29.2 Shri Kanhaiya Agarwal upon being asked stated that they have not verified the correctness of the declared address of the both the exporters viz. M/s. Vicky Sales and M/s. Jagdambe Exports by physical verification or by any other reliable source other than verified online through various portal; that they have no talked per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther exporters which shows that they have not charged anything extra.(Sl. No. 156 of Annexure "A" of Show Cause Notice). 58.1 Now, therefore, in view of Section 124 of the Customs Act, 1962 read with Clause 6 of Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020, M/s. Vicky Sales, New Delhi, are hereby called upon to show cause to the Additional Commissioner of Customs (Preventive), Jamnagar having his office at Sarda House, Opp. Panchwati, Bedi Bunder Road, Jamnagar 361 008, within 30 days from the date of receipt of this Show Cause Notice, as to why: (a) goods having declared F.O.B. value of Rs. 11,63,94,894/- and involving illegal refund of Integrated Goods & Services Tax amounting to Rs. 2,09,63,838/- should not be held liable for confiscation under Section 113(i) of the Customs Act, 1962; (b) goods having declared F.O.B. value of Rs. 8,55,68,400/- and involving illegal refund of Integrated Goods & Services Tax amounting to Rs. 1,54,02,312/ - should not be held liable for confiscation under Section 113(d) of the Customs Act, 1962; (c) penalty under Section 114 of the Customs Act, 1962 should not be imposed upon them for rendering the goods appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, 2020, Shri Sandeep Dawar, is hereby called upon to show cause to the Additional Commissioner of Customs (Preventive), Jamnagar having his office at Sarda House, Opp. Panchwati, Bedi Bunder Road, Jamnagar 361 008, within 30 days from the date of receipt of this Show Cause Notice, as to why: (a) penalty under Section 114 of the Customs Act, 1962 should not be imposed upon him; and (b) penalty under Section 114AA of the Customs Act, 1962 should not be imposed upon him. 58.5 Now, therefore, in view of Section 124 of the Customs Act, 1962 read with Clause 6 of Taxation and other Laws (Relaxation of Certain Provisions) Ordinance, 2020, Shri Yogesh Kanubhai Goradia, is hereby called upon to show cause to the Additional Commissioner of Customs (Preventive), Jamnagar having his office at Sarda House, Opp. Panchwati, Bedi Bunder Road, Jamnagar 361 008, within 30 days from the date of receipt of this Show Cause Notice, as to why: (a) penalty under Section 114 of the Customs Act, 1962 should not be imposed upon him; and (b) penalty under Section 1.14AA of the Customs Act, 1962 should not be imposed upon him. 58.6 . Now, therefore, in view of Section 124 of the Customs Act, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter by the enquiry officer. 4.5 The report of enquiry officer on the each of the charges and contravention leveled against the appellant is reproduced below: ARTICLES OF CHARGE AND FINDINGS OF INQUIRY 15. Regulation 10(a) of CBLR, 2018 "A Customs Broker shall obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorization whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case maybe." 15.1. In para 9.1 of impugned Show Cause Notice dated 29.09.2020, it has alleged that the CB appears to have contravened the provisions of Regulation 10(a) as they failed to obtain authorization from their client (exporter) directly and this fact was admitted by the CB in his statement 19.06.2019; that despite knowing that the signature made on authorization letter, export invoice, Bank verification certificate and Bond in respect of M/s Vicky Sales and M/s Jagdambe Export are different, he did not take this issue as a serious matter as all the documents were given by Shri Yogesh Goradia through courier. Thus it appears that the CB has fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner of Customs. as the case may be" 16.1. As per para 9.2 of impugned Show Cause Notice the CB appears to have contravened the provisions of Regulation 10(d) or CBLR 2018 as they have failed to advise their clients exporters to comply with the provisions of the Customs Act, 1962 and CGST Act, 2017 which led to the fraudulent availment of IGST credit by the exporters. Submission of CB during PH. 16.2. The format of authorization sent by the CB to the exporters for their signature wherein it is clearly mentioned as under: "We declare that we have read and understand customs law, foreign trade policy and procedure and other law for the tine being in force in India for import/export shipments and documents submitted here with are true, complete and correct in all manner and nothing has been concealed or attempted to conceal from the customs and any other authority." Thus, it is well established that while obtaining the authority letter from exporters, the CB appropriately advised them to undertake to comply with all provisions of the Customs Act and rules/regulations made thereunder. During the course of assessment when the officers of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport of goods for IGST availment The CB appears to not have worked diligently in the clearance of the said shipping bills for export consignments which were found mis-declared Submission of CB during P.11. 17.2 'The fact of overvaluation of export goods and illegal claim of IGST, came to the knowledge of the CB during the course of investigation only and the CB fully cooperated with the officer of customs when the query was raised by them and made all out efforts to ensure that the exporters comply with the directions issued by the custom authorities and to provide all details and documents sought by them. The CB also ensured that Shri Yogesh K. Goradia, forwarder and authorised representative or exporters, remained present at all the time at Pipavav Port. Findings of inquiry 17.3. I have gone through the Incident report dt. 20-6-19 with statement of CB dt. 19-6-19 and SCN dated 24.06.2020 issued by the Additional Commissioner of Customs (Preventive), Jamnagar after completion of investigation. There is no evidence to establish that CB has imparted incorrect information or non- information to the exporters about work relating to export of cargo. It is also important t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of his client at the declared address using reliable, independent, authentic documents, data or information;" 19.1. As per Para 9,5 of the impugned Show Cause Notice the CB failed to verify the identity, antecedent and address etc of their client as they did not verily the address of their exporter. The same was also admitted by the CB in his statement dated 19.06.2019 that they had not verified the identity of the client (exporters) and functioning of the client at the declared address by using reliable independent, authentic documents, data or information in respect of the exporters M/s Vicky Sales, Delhi and M/s Jagdambe Exports, Delhi at his level. Submission of CB during P.H. 19.2. In case of exporters namely M/o Vicky sales and M/S Jagdambe Exports, the CB took proper care in verification, as under: (i) In case of M/s. Vicky Sales, the CB obtained KYC documents viz Copy of IEC, Copy of GSTIN Registration, Copy of PAN Card, Copy of Aadhar Card of proprietor of exporter, Copy of Rent Agreement of the client (for address proof). The CB ascertained the authenticity of these documents from the various websites of the Government of India i.e., website of DGFT, website p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, I find that CB failed to check Authenticity of authorization letter and CB did not communicate to exporters directly. To that extent I find that charges that CB contravened the provisions of Regulation 10[n) are proved. 4.6 Principal Commissioner did not agree with the enquiry report and after issuing disagreement memo proceeded to adjudicate the show cause notice. 6.1 The defence had pointed out that CB had obtained authorization from exporters through Shri Yogesh Goradia but such authorization given by the exporters viz. M/S Vicky Sales and M/s Jagdambe Exports was legal and valid and that the exporters had not denied authorization given by them to CB for the entire period of investigation, and proceedings against them and therefore no proceedings can be initiated against CB under Regulation 10(a) of CBLR 2018. I find that investigating agency had issued summons to exporters namely M/s Vicky Sales and M/s Jagdambe Exports, however none of them came out before investigating agency. I also note that Shri Yogesh Goradia was front man of Shri Sandeep Dawar, Delhi based forwarder and Shri Yogesh Goradia made arrangements right from receiving cargo, appointing Customs Brokers, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation 10(a) of the CBLR, 2018. I hold that the CB failed to fulfil the obligation of Regulation 10(a) of CBLR, 2018. 7.2 I find that Shri Kanhaiya Agarwal (director of CB firm M/s SSS Sai Forwarders) in his statement recorded on 19.06:2019 under Section 108 of the Customs Act, 1962 admitted that he did not talk personally to the exporters on their given contact number or mobile number and the CB was only in contact with the mediator Shri Yogesh Goradia and the payments in cash as well as by account transfer were done by him. I hold that mere mentioning in format of authorization sent to the exporters whom he (CB) wasn't even in the know, does not suffice the obligation of the CB. Hence, it is evident that the CB failed to advise its clients (exporters) to comply with the provisions of the Customs Act, 1962 which led to the fraudulent availment of IGST credit by the exporters. It is obvious that there was no interaction between the Customs Broker and the actual IEC holder of the exporting firm M/s Vicky Sales and M/s Jagdambe Export. Therefore, in absence of any interaction with the exporter, it is clear that the Customs Broker could not have given proper advice to their cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to ascertain the correctness of the information regarding clearance formalities needed to be fulfilled. They also suppressed the fact of difference in signatures on authorization and KYC from Customs authorities and that they were dealing with a forwarder in place of exporter. Thus, it is clear that the CB has deliberately not carried out obligation cast on them so as to feign innocence later. They clearly had malafide intention in defrauding the Govt. exchequer and hence deliberately did not exercise due diligence in imparting process & procedure to their clients in legal export of goods. Thus, I find that the CB had not fulfilled the obligation of 10(e) of CBLR, 2018 with malafide intention. 9.1 It was submitted that it was not pointed out in the disagreement memo that CB had delayed in discharging their duties at any point of time. It was also added that even the inquiry report dated 01.04.2021 had held that there was no delay on the part of customs broker in discharging their duties. I find that certificate and Bond in respect of exporters are different, he processed the clearance of the export consignment. Had the CB acted in a vigilant manner and performed his duties effi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Goradia through courier. I note that CB only contacted Shri Yogesh Goradia for their doubt and never tried to approach exporters by any means. Thus, it is safely assumed that this knowledge would force the CB to go in deep into the issue regarding the verification of KYC details. The fact that they did not do so and did not verify the business functioning only points to their malafide intention. In fact, they did not question the need to be dealing with the forwarder, Shri Yogesh Goradia instead of the client for all aspects. Instead the CB conveniently accepted documents from him including the KYC documents, thus facilitating fraudulent exporter. The CB conveniently made no efforts to know if the exporter was genuine or not and instead consciously turned a blind eye to all discrepancies as they were a part of the syndicate. As a Customs Broker, while accepting the documents from the third person, they did not take due care to verify the client, their business functioning, antecedents, genuineness of business, the export details and its correctness etc. using any independent, reliable and authentic means. There is no denying the fact that the CB M/s. SSS Sai Forwarders Pvt Ltd (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther that the information in Table 6A furnished under the first proviso shall be auto-drafted in FORM GSTR- 1 for the said tax period.] (3) Upon the receipt of the information regarding the furnishing of a valid return in FORM GSTR-3 7[or FORM GSTR-3B, as the case may be;] from the common portal, 8[the system designated by the Customs or the proper officer of Customs, as the case may be, shall process the claim of refund in respect of export of goods] and an amount equal to the integrated tax paid in respect of each shipping bill or bill of export shall be electronically credited to the bank account of the applicant mentioned in his registration particulars and as intimated to the Customs authorities. (4) The claim for refund shall be withheld where,- (a) a request has been received from the jurisdictional Commissioner of central tax, State tax or Union territory tax to withhold the payment of refund due to the person claiming refund in accordance with the provisions of sub-section (10) or sub-section (11) of section 54; or (b) the proper officer of Customs determines that the goods were exported in violation of the provisions of the Customs Act, 1962. (5) Where re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (E), dated the 23rd October, 2017 has been availed; or (b) availed the benefit under notification No. 78/2017- Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub- section (i), vide number G.S.R 1272 (E), dated the 13th October, 2017 or notification No. 79/2017-Customs, dated the 13th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 1299 (E), dated the 13th October, 2017 except so far it relates to receipt of capital goods by such person against Export Promotion Capital Goods Scheme.] 13[Explanation. - For the purpose of this sub-rule, the benefit of the notifications mentioned therein shall not be considered to have been availed only where the registered person has paid Integrated Goods and Services Tax and Compensation Cess on inputs and has availed exemption of only Basic Customs Duty (BCD) under the said notifications.] 4.8 Interestingly from the perusal of the Rule 96, it is evident that the refund under this rule is processed on the basis of system to system verification without of the invoices issued by the exporter under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advising the client, exporter in that respect?. How in case of exports when the exporter has been registered on the GSTN, after due verification and diligence by the GST authorities, the availability of the said GSTIN on the Export Invoices and the shipping documents be not enough to verify the identity of the exporter. In any case without GSTIN will it be possible to claim the IGST Refund in any circumstances. 4.10 In case of Freight & Travels Pvt. Ltd. [2016 (344) ELT 602 (Tri Delhi)] tribunal has held as follows: 4. We have heard both the sides and examined appeal records. The license of the appellant stands revoked only on the ground that they have failed in their obligation of verifying the identity of his client and their existence in the given address. The admitted facts of the case are that the importer's details as available in IEC, PAN Cards, Bank Account and electricity have been checked by the appellant. No physical verification of importer's premises is mandated in the regulations nor it is a general requirement as per business practice. No violations have been noticed in respect of transactions with Customs with reference to consignment cleared through the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er/exporter. The Tribunal also observed that it is a settled law that the punishment has to be commensurate and proportionate to the offence committed. In the present case, we notice that the punishment of revocation is not justifiable even if it is to be admitted that physical verification of the importer's premises could have avoided the filing of the bill of entry by the appellant. Even in such a situation, the violation in respect of the cargo viz. the non-declaration of the RSP on the auto parts, a debatable point of interpretation, cannot be held against the appellant to result in the revocation of their licence. Here, it is to be noted that the bill of entry was filed after the detention of the goods for inquiry by the DRI Officers and request for physical verification of the cargo before assessment has been made in the form of first check bill of entry. We find that the impugned order passed on dis-agreement with the inquiry report has not brought out clear sustainable ground for such extreme action of revocation of licence. Violation of CBLR, 2013 has not been brought out as all the points have been elaborately discussed in the inquiry report and no sustainable ground for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or awarding such punishment, it has to be established without doubt that the Customs broker had colluded with the importer to enable the fraud to take place. No such culpability is forthcoming in respect of the appellant herein. On the other hand, the Inquiry Officer, appointed under CBLR, 2013, has opined that there is no substantive case to level charges violation of Regulation 11(a), (b), (n), (e) & (k) of the CBLR, 2013. The Inquiry Officer has in fact clearly stated that he has not found anything substantial that can merit proposing revoking the license of the appellant or imposing the penalty. The Inquiry Officer has categorically reported that at the most, appellant may be given a strict warning." 4.13 Even if we hold that the appellant is guilty of the charges leveled against him then also can his license be revoked for that reason in the circumstances of this case. In case of KVS Cargo [2019 (365) ELT 392 (Tri Del.)] tribunal held: 7. The Directorate of Revenue Intelligence investigated the case of fraudulent import of food supplements, by certain unscrupulous elements, in contravention of FSSAI Act, 2006. The appellant had filed the relevant bills of entry. After enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to ascertain the correctness of information which he imparts to client. In the facts of the present case, both the partners of M/s. Unisys Enterprise, have admitted that they were unaware of the actual imports made in their name. Further, the appellant also has admitted that they never met the owner of the firm. From this it appears that the appellant failed to exercise due diligence to ascertain the correctness of information which he imparted to the client with reference to work related to clearance of cargo. 12. Regulation 11(n) requires the CB to verify the antecedents, correctness of IEC code no., identity of the client and its functioning at the declared address. In the present case, we find that the appellant has simply accepted the address appearing in the driving license of Shri Sachin Gulati, partner of M/s. Unisys Enterprise. The appellant failed to notice that the address in the IEC document is different. Had the appellant made any serious verification, he would have known that the IEC of the firm was being used by a third person, Shri Aman Vachhar. Consequently, we are of the view that violation of Regulation 11(n) stands established for failure to verify anteced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the tribunal in para 5 reproduced below: "5. We have heard rival contentions and perused the case record. The issue before us is to decide as to whether the appellants has any role in the deliberate overvaluation of the imported goods by the importer and also whether they have failed to verify the KYC norm as per the CBLR, 2013. We find that the show cause notice has been issued under Section 110(2) of the Act and not under the Section 124 of the Customs Act. For the better appreciation of the fact, we hereby reproduce the provisions of Section 110 of the Act : 110. Seizure of goods, documents and things. - ..... Section 110(2) of the Act deals with extension of time period for issuance of show cause notice within prescribed period of six months of the seizure of the goods." 4.15 Thus we are of the opinion that enquiry officer has more reasonably concluded in the matter, and the appellant CB can at the most be held guilty for contravention of the Regulation 10 (n). Various High Courts have held that punishment for the offences should be proportionate to the gravity of offence. In the present we do not find that appellant was in any way responsible for any act of misco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequences of any action which may give rise to action for suspension, revocation or nonrenewal have to keep several aspects in mind. Primarily, the effect of the action vis-a-vis right to carry on trade or profession in the background of Article 19(l)(g) of the Constitution has to be noted. It has also to be borne in mind that the proportionality question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death." 4.17 Delhi High Court has in case of Ashiana Cargo Services[2014 (302) ELT 161 (DEL)] held as follows: "11. Viewing these cases, in the background of the proportionality doctrine, it becomes clear that the presence of an aggravating factor is important to justify the penalty of revocation. While matters of discipline lie with the Commissioner, whose best judgment should not second- guessed, any administrative order must demonstrate an ordering of priorities, or an appreciation of the aggravating (or mitigating) circumstances. In this case, the Commissioner and the CESTAT (majority) hold that ―there is no finding nor any allegation to the effect that the appellant was aware of the misuse if the said G cards, but do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance of relevant factors, i.e. knowledge/mensrea, gravity of the infraction, the stringency of the penalty of revocation, the fact that the appellant has already been unable to work his license for a period of 6 years (now 8 years), and accordingly sets aside the order of the Commissioner dated 24-1-2005." 4.18 Bombay High Court has in case of AS Vasan & Sons (Bombay)[2010 (249) ELT 492 (BOM)] held as follows: "6. As regards the first ground in paragraph no. 13 of the order dated 20th May 2009, the respondent has observed that at the time of hearing, Mr. Unnikrishnan gave visiting cards (proposed for noting the persons or seeking entry) into the customs area for hearing of the petitioner firm showing that it was a Custom House Agent. The petitioner firm was thus representing that it possessed a CHA licence even after the CHA licence had expired and not renewed. The explanation by Mr. Unnikrishnan that the visiting cards were printed two years ago when the CHA licence was still valid and he had simply used the same card without any intention of making any false representation was not accepted by respondent no. 2. In our opinion, the explanation offered by Mr. Unnikrishnan w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
