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TMI Blog2023 (5) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... is remanded and the matter in remand proceedings should be decided within two months from the receipt of this order. Appeal is allowed by way of remand. - Customs Appeal No. 85501 of 2022 - FINAL ORDER NO. A/85308/2023 - Dated:- 23-1-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) And HON BLE DR. SUVENDU KUMAR PATI , MEMBER ( JUDICIAL ) Shri Anil Balani , Advocate , for the Appellant Shri Sydney D Silva , Additional Commissioner , Authorised Representative for the Respondent ORDER PER : SANJIV SRIVASTAVA This appeal is directed against Order-in-Original CAO No. 139/CAC/PCC(G)/SJ/CBS(Adj) dated 28.01.2022 passed by the Principal Commissioner of Customs (General), Mumbai-I, holding as follows : - ORDER I, Principal Commissioner of Customs (General), in exercise of the power conferred upon me under Regulation 17(7) of the CBLR, 2018, pass the following order: (i) I hereby impose penalty of Rs.50,000/- (Rupees Fifty Thousand only) on M/s. Hayatt Shipping Pvt. Ltd., CB No. 11/396 [PAN No. AAAFA3866E) under Regulation 18 of the CBLR, 2018. (ii) I hereby order for forfeiture of entire amount of security deposit furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Balani, Advocate for the appellant and Shri Sydney D Silva, Additional Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits as follows:- There is no reference to any Offence Report in the above orders. The Enquiry Notice was issued on 15.03.2021 (Ex.-D). It refers to and relies upon statements of the following persons:- (i) Mohd. Arfat Mehmood Mukadam, Director of the Appellants; (ii) Santosh D. Gunjal, the person who referred the work; (iii) Sahadeo B. Rade, Proprietor of Global Enterprise, the importer firm; (iv) Chandrashekar C. Rane; (v) Irfan Popatiya; and (vi) Amjad Bakall In Advocate's letter dated 9.8.2021 (Ex.-E) (on page 92) It is recorded that even the Enquiry Notice does not refer to any Offence Report. Advocate's letter dated 11.08.2021 (Ex-F) records that statement of representative of The Greater Bombay Co-op. Bank Ltd. and mail of the Branch Manager of the said Bank were never supplied. It was prayed that cross-examination of all persons must be granted after supplying the said documents. In Advocate's letter dated 29.10.2021 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 23. But unfortunately, the request for cross-examination was rejected by the Enquiry Officer for the reasons stated in paragraph 27 of his report. Paragraph-27 of the enquiry report reads as follows : 27. As the request for cross-examination of witnesses was made to the Assistant Commissioner (Inquiry Officer) during the 4th PH, necessary correspondence to facilitate the same on 8-1-2018 were made as detailed in para 17 above. While the noticee has further requested for a fresh date and time for cross-examination with at least one week notice; but since the inquiry report has to be submitted within a period of 90 days from the date of issue of Notice as per Regulation 20(5) of the CBLR, 2013, the same is not possible for consideration. Further it needs to be stated that neither of the witnesses has turned up for cross-examination on the scheduled date, despite even an oral communication about the same to Shri Pramod Bhor. Given that the request for cross-examination of persons (whose statements been recorded) was put forth to the Assistant Commissioner on 18-12-2017 only, efforts to enable the same within the time-constraints of inquiry proceedings as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.M. Mehta Bros [2017 (346) ELT 477 (Tri.-Mum.)] Sabin Logistics Pvt. Ltd. [2018 (362) ELT 226 (Mad.)]. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Commissioner has recorded following findings in the impugned order to hold against the appellant:- 35.5 In the instant case, the license of Customs Broker M/s. Hayatt Shipping Pvt. Ltd., CB No (11/396)was suspended vide Order No. 42/2020-21 dated 16.02.2021 under the provisions of Regulation 16(1) of CBLR, 2018. Thereafter Personal Hearing to the CB was given and the Suspension of the CB license was revoked vide order no. No.52/2020-21 dated 15.03.2021 read with corrigendum dated 27.07.2021 to Order No.52/2020-21 dated 15.03.2021under the provisions of Regulation 16 (2) of CBLR, 2018, pending inquiry under Regulation 17 of the CBLR, 2018. Vide Show Cause Notice No. 82/2020-21 dated 15.03.2021, the CB were called upon to show cause, as to why the license bearing no. 11/396 issued to them should not be revoked and security deposited should not be forfeited and/or penalty should not be imposed upon them under Regulation 14 read with 17 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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. As per statement of Shri Sahdeo Bapurao Rade, proprietor of M/s. Global Enterprises was recorded on 08.08.2018, under Section 108 of the Customs Act, 1962 he did not apply for any Importer- Exporter Code (IEC). According to this statement neither he ever has any business interest in M/s. Global Enterprises nor was he aware of M/s. Global Enterprises. It was also added that he has not given any authorization or Power of Attorney to anybody to operate business activities of M/s. Global Enterprises. He also claimed that he was not the proprietor of M/s. Global Enterprises and not aware of its business or functioning. In the Statement Shri Mohammed Arfat Mehmood Mumkadam, Director and GPower of Attorney holder of the Customs Broker recorded on 06.08.2018, he inter alia admitted that he got the documents from a person by name Shri Irfan Ismail Popatiya, who was introduced by his friend Shri Santosh Gunjal. From this, it is evident that Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd genuineness of the proxy importer M/s. Global Enterprises. It is evident that the CB has not been efficient in the discharge of their obligation laid down under the CBLR, 2018. Hence, I hold that the CB failed to fulfil the obligation of Regulation 10(m) of CBLR, 2018. 36.5 In respect of Regulation 10(n) of CBLR 2018 it has been alleged that the CB did not verified correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN), identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information It is observed from record that the CB M/s. Hayatt Shipping Pvt. Ltd., CB No. 11/396 failed to verify correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN), identity and functioning of M/s. Global Enterprises at the declared address by using reliable, independent, authentic documents, data or information. Statement Shri Mohammed Arfat Mehmood Mukadam, Director and G-Power of Attorney holder of the Customs Broker M/s. Hayatt Shipping Pvt. Ltd. was recorded on 06.08.2018, under Section 108 of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her authority. The Inquiry Officer gravely erred in examining statements of 7 persons which were recorded under section 108 of Customs Act, 1962 without following the procedure laid down under the CBLR. The said 7 persons should have been directed to attend the Inquiry Proceedings. Their testimony should have been recorded and thereafter Crossexamination should have been permitted. Regulation 17(3) (4) read as under. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines permission to examine any person on the grounds that his evidence i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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