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TMI Blog2024 (1) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... em. Violation of Regulation 10(d) ibid - HELD THAT:- The appellants could not submit the complete details in respect of the imported goods. The facts also revealed that during an investigation by CIU, the appellants CB had submitted the BIS certificates and ETA (self-declaration) one time import permission in respect of few imported goods, which the customs authorities have found to be proper. This has also been recorded in paragraph 2.2 of the impugned order. In the absence of any document to prove that the appellants CB had purposefully mis-declared the description or other details of imported goods, it is difficult to fasten liability for the violation of Regulation 10(d) ibid on the appellants for not advising their clients or informing the Customs Authorities in respect of the details that was not furnished at the time of filing of bill of entry. Violation of Regulation 10(m) ibid - HELD THAT:- The appellants CB had filed the bill of entry on the basis of invoice and packing list, providing the details of brand name, model number, battery ratings/capacity, nature of goods such as neckband or wireless type earphone etc. Thus, the appellants CB has been careful and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms (General), New Custom House, Ballard Estate, Mumbai-I. 2.1. Briefly stated, the facts of the case are that the appellants herein is a Customs Broker (CB) holding a regular CB license issued by the Mumbai Customs under Regulation 9(1) of Custom House Agents Licensing Regulations, 2004 [now 7(2) of Customs Brokers Licensing Regulations (CBLR), 2018]. An offence report dated 14.10.2022 was received from the Central Intelligence Unit (CIU) of New Custom House (NCH), Mumbai-I, informing that on reasonable suspicion they had kept on hold certain imported goods in container No. TEMU 8525264 imported by M/s Reton Engineering, for which Bill of Entry (B/E) No.2049316 dated 17.08.2022 has been filed by the appellants. 2.2. On the basis of such offence report received from CIU, NCH, Mumbai, the jurisdictional Principal Commissioner of Customs (General), Mumbai-I had concluded that there is a prima facie case against the appellants for having contravened Regulations 10(d) and 10(m) of CBLR, 2018. Accordingly, he had immediately suspended the CB license of the appellants under Regulation 16(1) ibid, vide Order No. 53/2022-23 dated 23.12.2022; and such suspension was continued vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive (AR) reiterated the findings made by the Principal Commissioner of Customs (General) in the impugned order and submitted that both the violation under sub-regulations (d) and (m) of Regulation 10 ibid, has been examined in detail by the Principal Commissioner. The appellants CB did not declare the complete details of the imported goods and the mandatory declarations required under BIS, WPC certification, Legal Meteorology Packaged Commodities Rules. Thus, learned AR justified the action of Principal Commissioner of Customs (General) in revocation of the appellant s CB license, imposition of penalty and forfeiture of security deposit in the impugned order and stated that the same is sustainable in law. It is further stated by him that the impugned order viewed that the timelines specified in CBLR are directory in nature and not a mandatory factor. 5. Heard both sides and perused the case records. We have also considered the additional written submissions given in the form of paper book by learned Advocate for the appellants as well as Authorised Representative for the Revenue. 6.1. The issue involved herein is to decide whether the appellant Customs Broker has fulfilled a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B/E relate to two 26 items in 898 cartons mainly consisting of adhesive cello tapes, earphones, mobile back cover, lithium battery, smart watch, caliper for two wheeler, neck band wireless ear phone etc. These goods have been described in detail in Table-I and Table-II of the impugned order. From the above factual details, we find that the appellants CB had declared the description of the imported goods and other details in the B/E for aforesaid imports as given in the invoices and packing list provided by the importer. Further, the appellants were not aware of the package of the imported goods as there was no evidence to whether it was in individual packing or in bulk packing. It is not the case of the Revenue that the mandatory declarations in respect of the imported goods was deliberately not mentioned by the appellants CB, despite the details having been made available by the importer. In fact the plea made by the appellants is that the importer had promised to submit the required documents in respect of WPC certificates, declarations required under BIS/Legal Meteorology and Packaged Commodity Rules. However, in respect of imported goods vide B/E No.2049316 dated 17.08.2022, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts or obligations under Regulations 10(m) ibid. 8.1 We also find that the appellants CB had specifically requested for cross examination of the importer and the persons whose statements were recorded by the Inquiry Officer on 07.02.2023. However, no reasons were given for declining the cross examination to the appellants; further the learned Principal Commissioner of Customs had upheld the denial of cross-examination by the Inquiry officer, as there is no reliance on any statements of the importer and such evidence is not relevant. In this regard, we find that in both the charges against the appellants, they have taken the plea that the importers are supposed to provide additional documents in respect of WPC license etc., and there was no complaint of any delay or inefficiency on their part from the importer. Thus it is very clear that unless the opportunity is given to prove or disprove the above stand taken by the appellants, the basis on which the charges were framed by the Department for violation of Regulations under 10(d) and 10(m) cannot be proved with evidence. Thus we find that there is a failure in the Inquiry proceedings to comply with the requirement of providing na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner on 18-12-2017 only, efforts to enable the same within the time-constraints of inquiry proceedings as per the Regulation 20(5) of CBLR, 2013 were made. Moreover, the primary submission, dated 6-11-2017, was neither directed to the Inquiry Officer nor was the CB forthcoming to either attend the PH or submit supporting documents, until withdrawal of the notice by the Principal Commissioner of Customs. In the event of no such withdrawal and given the limitations of time, but keeping in view of the requirements of providing opportunity of being heard (which were not attended by the CB) and given the non-presentation of witnesses for cross-examination, it is to state that the findings are based on the available documents at hand i.e. the offence report, statements of Arjun Pilane and Pramod Bhor, the Prohibition order and the submissions of the CB, read with CBLR, 2013. 24 . Therefore, it is clear that there was a gross violation of the principles of natural justice. Unfortunately for the Department, the principles of natural justice have also been in-built into Regulation 20(4). Therefore, the Enquiry Officer could not have violated the mandate of law. It would have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7 . As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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