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TMI Blog2023 (5) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the goods in contravention of the provisions of Customs Act, 1962, read with Section 9 and 17 of the Insecticides Act, 1968 cannot be held to be proper. The decision in the case of DHAKHANE CO VERSUS COMMISSIONER OF CUSTOMS (GENERAL) , NCH, MUMBAI [ 2014 (12) TMI 771 - CESTAT MUMBAI] relied upon by the Revenue is not applicable to the facts of the present case as in the said decision the authority letter issued by exporter in favour of CHA was fabricated. In the case of PRIME FORWARDERS VERSUS COMMR. OF CUSTOMS, KANDLA [ 2007 (11) TMI 37 - CESTAT, AHMEDABAD] , Tribunal has observed that As regards, penalty on M/s. Prime Forwarders, customs house agent, no evidence of their involvement or their knowledge about mis-declaration has been brought on record. The Commissioner has observed that being a responsible CHA, he should have informed the correct description of the goods. However, we find that the said CHA has acted on the basis of the documents given to them and there is nothing to show that he was aware of the containers being stuffed with Ferro Titanium instead of brass scrap. As such we find no justification for imposition of penalty upon the said appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired for the import of these goods from the Central Insecticides Board, under Section 9 of the Insecticides Act, 1968 and to evade customs duty leviable thereon. 2.3 It was also gathered that the goods have been misdeclared and the actual goods concealed from prohibited goods under the Schedule of Insecticides Act. 2.4 After investigations were undertaken, a show cause notice dated 30.12.2020 was issued to the importer and others involved. Joint Commissioner in his order dated 24.02.2021 observed as follows:- 40. Insofar as the 2nd charge against the CB is concerned, I find that the present case is one where an adjudication of a Show Cause Notice under the Customs Act, 1962 is being decided. Therefore, the charge that the Custom Broker has not followed the obligations stipulated under Regulation 10 of the Customs Brokers Licensing Regulations, 2018 cannot be dealt by me in these proceedings. Therefore, this part of the charge levelled against them in the impugned Show Cause Notice is not maintainable and has to be dropped in these proceedings under the Customs Act, 1962 for want of jurisdiction. However, a copy of this Order in Original is being endorsed to the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.K. Logistics [2016 (331) ELT 486 (Tri.-Del)] Jaiswal Import Cargo Services Ltd. [2019 (370) ELT 1366 (Tri.-Del.)] United Safeway India Pvt. Ltd. [2019 (369) ELT 1563 (Tri.-Bang.)] Moriks Shipping Trading (P) Ltd. [2015 (317) ELT 3 (Mad.)] Akanksha Enterprises [2006 (203) ELT 125 (Tri.-Del.)] GM Enterprises [2010 (262) ELT 796 (Tri.-Mumbai)] Prime Forwarders [2008 (222) ELT 137 (Tri.-Ahmd.)] 3.3 Learned AR while reiterating the findings recorded in the impugned order, would rely upon the following decisions in his support:- Rizvi Shipping Agency [2019-TIOL-1439-HC-MUM-CUS] H.B. Cargo Services [2011 (268) ELT 448 (AP)] Dhakane Co. [2015 (317) 56 (Tri.-Mumbai)] 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 For upholding against the appellant, the impugned order observes as follows:- 23.8 I now examine the charges in the Charge Notice sequentially. It has been alleged that CB did not exercise due diligence in discharging their obligation as required under Regulation 10(d), 10(e), and 10(m)of the CBLR, 2018. 23.9 In respect of Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inquiry officer are based on the available evidence, facts and circumstances of the case. I agree with the findings of the Inquiry Officer with respect to violation of Regulation 10(d) of the CBLR, 2018. Thus, the CB have violated the provisions of Regulation 10(d) of CBLR, 2018, which proves the contravention of provisions of Regulation 10(d) of the CBLR, 2018. 23.10 In respect of Regulation 10(e) of CBLR 2018 it has been alleged in the Show Cause Notice that the CB did not exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. I find that the CB has failed to exercise due diligence as they had undertaken the customs clearance of the said import consignments of M/s. Bansi Enterprises from Shri Sumit Sharma, i.e. other than the importer and that the CB didn't meet IEC holder of M/s. Bansi Enterprises personally. From the statement dated 03.10.2019 of Shri Gyaneshwari V Singh, Branch Manager of Customs Broker Firm M/s. Geeta Vijay Logistics (CB No. 11/2391) and statement dated 17.07.2020 of Shri Vishal HanubhaiShiyaliya, proprietor of M/s. Bansi Enterprises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect description, quantity and value of the impugned goods; that, they had not followed the obligation stipulated under Regulation 10 of the Customs Broker Licensing Regulations, 2018 and thus they have rendered themselves liable for penal action Section 112(a) of the Customs Act, 1962. In their reply to the Notice they have stated with the help of case laws that all the import documents of the Importer, M/s Bansi Enterprises including KYC presented to Customs were given to them by Shri Sumit Sharma who claimed to be authorised representative/ manager of the importer firm and presented the authority letter along with the import documents. They then verified the same and found to be genuine and they then took up the job before filing the Bill of Entry as provided in Rule 11 of the CBLR, 2013. On detection of the case, they ensured presence of Shri Vishal Proprietor of M/s. Bansi Enterprises before the Hanubhai Shiyaliya, Customs officers for investigation and extended full cooperation in the inquiry. They were not aware of foul play or mis-declaration. They contend that the duly signed import documents were handed over by Shri Sumit Sharma to them for customs clearance which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Authority Letter dated 11.04.2020 absolves them of the charges that the CB knew that the goods were liable for confiscation. Under such a situation, the Authorisation dated given by the Importer to the Customs broker holds the key to the innocence of the Customs broker Looking at the wordings used in this Authority Letter dated 11.04.2020, 1 extend the benefit of doubt to the CB by accepting the defence put up by the CB under the Customs Act, 1962, that, even if part of the goods were found concealed with Amino Acid where during investigation, it was found that the concealed goods were prohibited goods under Section 2 (33) of the Customs Act, 1962, still having regard to the date when the Authority Letter was issued by the Importer, ie 11.04.2020, it has to be held that the CB was not aware that the goods were liable for confiscation. As a result, I refrain from penal provisions under Section 112(a) of the Customs Act, 1962 against the CB. 4.4 If the Customs broker had been acting as per the authority letter which was mentioned in the statement of Customs broker as has been accepted by the Joint Commissioner while adjudicating the above case, the charge for contraventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 13. No doubt, CHA is a link between the Customs Authorities and the importers and the CBLR Regulations imposes obligation upon them which have to be taken as mandatory but law is also settled that not any and every infraction of the CHA Regulations either Regulation 13 or elsewhere leads to the revocation of license rather in line with a proportionality analysis and only grave and serious violation justify revocation. As it was held by this Tribunal in the case of Ashiana Cargo Services v. Commissioner of Customs (I G) reported in 2014 (302) E.L.T. 161 (Del.), the Tribunal further clarified that revocation of licence under Rule 20(1) can only be justified in the presence of aggravating factors that allow infraction to be labelled grave. It is the presence of mens rea to act fraudulent or an act of corruption due to intentional violation of CBLR Regulations with an intent to evade duty which invites the punishment as that of cancellation of CB Licence. This punishment cannot be proportionate to the mere absence of due diligence. As far as M/s. Jaiswal Import Cargo Services Limited is concerned there is nothing on record to even show the absence of due diligence on their pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he overvaluation of the export goods. In view of the finding of the Inquiry Officer, it was not required to pass the impugned order by the Commissioner of Customs. Further, the Commissioner has also violated the principles of natural justice without putting the appellant to notice the reasons for his disagreement with the findings of the Inquiry Officer which according to us is the basic requirement of law. Further, we find that various decisions relied upon by the appellant cited supra, Courts have consistently held that the extreme penalty of revocation should be invoked only when there is a clear involvement of the appellant in mis-declaring the value of the goods in order to avail pecuniary benefits. Therefore by relying upon the ratio of the various decisions cited supra, we are of the considered opinion that the impugned order is not sustainable in law and therefore, we set aside the same by allowing the appeal of the appellant. 4.10 In the case of Moriks Shipping Trading (P) Ltd. [2015 (317) ELT 3 (Mad.)], Hon ble Madras High Court observed as follows:- 6. Even at the very outset, it is evident from the order of the Tribunal that the goods were examined by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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