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TMI Blog2024 (1) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. Having discussed that the actual fabrication was done by the CB representative to avoid the shed appraiser who keeps vigil over undervaluation cases in RMS and the fact that the goods in the bill of entry in question were found to be under-valued and in that view the importer had paid the differential duty with interest and penalty suo-moto, the entire modus-operandi of fabricating and forging the document was at the behest of the Customs broker which was implemented by Prashant Jain being the H-Card Holder of the CB - irrespective of whether any benefit had accrued to the appellant or not, he is guilty for such forgery/fabrication of the document thereby violating Regulation 10(j). It is an admitted position that the entire work of handling the import clearances was done by Shri Prashant Jain, the G-Card Holder of the appellant. The appellant cannot escape the liability by putting the entire burden on his employee and say that nothing was in his knowledge. Consequently, we hold that the appellant is vicariously liable and responsible for the conduct of Prashant Jain being his employee in fabricating the document. The provisions of the regulations cast special obligations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Jain and Smt. Seema Singh are partners. The work of import clearances were conducted by Shri Prashant Jain, H-Card Holder. The present case relates to submission of forged/fabricated documents by the CB before the customs officer to avoid assessment of imported goods, namely iron nuts and iron bolts vide bill of entry no. 7447412 dated 31.07.2018, on behalf of the importer, M/s Supreme Enterprises. 3. The bill of entry was facilitated under RMS and the examination order was generated which reads as, Assessment and Examination has not been prescribed for this B/E which meant that the said B/E was marked for RMS facilitation for which assessment and examination was not to be conducted and the out of charge has to be given by the in-charge shed appraiser. The container was cleared on 13.08.2018. 4. While reviewing the clearance of the goods under RMS, it came to the notice of the department that, the system entry showed as, Assessment and Examination has not been prescribed for this B/E whereas it appeared that the CB produced the B/E for clearance at import shed with another examination instruction through forged entries where the first print page of the docket read as, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant are to the effect that the act of fabrication of documents was done by Shri Prashant Jain and there was no instruction from the CB firm to manipulate the documents and they had no intimation of it. No monetary consideration was given to Shri Prashant Jain for speedy clearance of the goods. That as soon as the forgery was brought to the notice of the CB, he immediately coordinated with the department as well as the importer who paid the differential duty along with interest and penalty vide challan dated 23.08.2018. He denied that there has been any casual approach in supervising the employees and hence there is no violation of Regulation 13(12). 9. The learned Authorised Representative reiterated the findings of the Commissioner of Customs in the impugned order and clarified the implications of the fabrication of the document in the present case. He relied on the statement of Shri Prashant Jain where he accepted having forged the document for monetary consideration offered by Shri Aman Jain for faster clearance of the goods which is further corroborated by the statement of Shri Aman Jain. According to him, it is a clear case where the CB had submitted forged/fabricated doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The admission by the appellant thus connects him to the act of his employee and hence he is responsible for the contravention of the Regulations. 11. Having discussed that the actual fabrication was done by the CB representative to avoid the shed appraiser who keeps vigil over undervaluation cases in RMS and the fact that the goods in the bill of entry in question were found to be under-valued and in that view the importer had paid the differential duty with interest and penalty suo-moto, we are of the view, that the entire modus-operandi of fabricating and forging the document was at the behest of the Customs broker which was implemented by Prashant Jain being the H-Card Holder of the CB. Needless to say Shri Aman Jain is holding 90% share in the firm and therefore he is very much interested and affected by the efficient performance of the firm. The submission of the learned Counsel that there was no monetary gain or benefit to him by such act, we feel that the same analogy would apply to Prashant Jain also. Therefore, irrespective of whether any benefit had accrued to the appellant or not, he is guilty for such forgery/fabrication of the document thereby violating Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise, without the knowledge of the Customs broker, the goods could not have been diverted and he is equally bound by the act of his authorised representative or agent. 15. The appellant has relied on several decisions, which are as under:- (i) Zulash Clearing Shipping Agency Vs. Commissioner of Customs (General), Mumbai 2018 (9) TMI 766 CESTAT-Mumbai (ii) M/s. A.B. Agencies Vs. Customs, Excise Service Tax Appellate Tribunal and Commissioner of Customs 2015 (8) TMI 143 Kerala High Court. (iii) M/s. Ashiana Cargo Services Vs. Commissioner of Customs (I G) - 2014 (3) TMI 562 Delhi High Court. (iv) Transfreight Merine Services Private Limited Vs. Commissioner of Customs (Seaport-Import), Chennai 2016 (2) TMI 438 CESTAT Chennai. (v) Shri Ganesh Shipping Agency Vs. Commissioner of Customs, Bangalore 2011 (4) TMI 1172 CESTAT, Bangalore. (vi) Ark Logistics (P) Ltd. Vs. Commissioner of Central Excise, Hyderabad 2009 (9) TMI 842 CESTAT Bangalore. (vii) Falcon Air Cargo Travel (P) Ltd. Vs. Commissioner of Customs, New Delhi 2001 (11) TMI 137 CEGAT, New Delhi. 15(i). In Zulash Clearing (supra), the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15(iv). The Chennai Bench in Trans Freight Marine Services Private Ltd. (supra), noted that the Adjudicating Authority had expressed that there is no involvement of the management/appellant in the act committed by the employee and in that view the revocation of license was held to be unsustainable. 15(v). Similarly, in Sri Ganesh Shipping Agency (supra), the Bangalore Bench following the decision in the case of Ark Logistics (P) Ltd. held that CHA could not be penalised invoking Regulation 19(8) of CHA Licensing Regulations, 2004 in the absence of any finding that the CHA had knowledge of the acts of commissions and ommissions on the part of its employee and hence the same has to be distinguished from the facts of the present case. 15(vi). In Falcon Air Cargo and Travel (P) Ltd. (supra), the first enquiry officer exonerated the appellant and the second enquiry officer observed that it cannot be said with certainty that they connived with them to append false declaration as alleged and therefore applying the principle of proportionality, it was observed that it is not a fit case for revoking the license as the charges are not so grave. 16. One aspect which requires to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to avoid the shed appraiser who keeps vigil over undervaluation cases in RMS and the present B/E was found to be undervalued. On the contrary the system entry showed, Assessment and Examination has not been prescribed for this B/E. In other words it amounts to fraud and the principle is that fraud vitiates all actions. In the circumstances no indulgence is required to set aside the order of revocation of Customs Broker License. 19. We would like to refer to the statement of Smt. Seema Singh, the other partner of the CB firm which was recorded on 15.09.2018 where she stated that she did not know Sh. Prashant Jain. Later Smt. Seema Singh retracted her statement to the effect that the said statement was made in the heat of time and under mental pressure and clarified that she knows him as employee. The belated retraction by her has no substance and as held by the Apex Court in Surjeet Singh Chhabra vs Union of India 1997 (89) ELT 646, the confession, though retracted is an admission and binds the petitioner. This conduct of Smt. Seema Singh raises doubt on her credibility and reflects that on being caught she also tried to escape from the responsibility. 20. The submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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