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TMI Blog2024 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... upposed to safeguard the interests of both the importers and the Customs and therefore a lot of trust is kept in CHA by the importers or exporters as well as by the NOBLE AGENCY VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [ 2002 (2) TMI 171 - CEGAT, MUMBAI ]. Therefore, the appellant when he admits that he did not verify the address of the exporting company as they were in Amritsar and also did not raise any query for non production of the authorization from the exporter company had violated the obligations cast on a customs broker under the Regulations. Considering the extent of violation that can be attributed to the appellant and the fact noted by the Commissioner that active role was played by Shri Kumod Kumar Choudhary, employee of the CB and role of CB has not come out anywhere in the investigation as also CB has taken immediate action against the employee, applying the doctrine of proportionality the forfeiture of security deposit is far beyond proportion and imposition of penalty of Rs. 50,000/- is sufficient. The impugned order is modified to the extent that forfeiture of the security deposit needs to be set aside and only the order whereby the penalty has been impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination by SIIB on 13.05.2020, the goods were found as non-woven fabrics appeared to be used in the manufacturing of Mask, which was prohibited for export vide Notification No. 52/2015-2020 dated 19.03.2020, issued by the Director General of Foreign Trade (DGFT). Thus, the goods were mis-declared and also found to be prohibited. Accordingly, the impugned goods were seized vide seizure memo dated 13.05.2020 under Section 110 of the Customs Act, 1962. 3. Show cause notice dated 22.12.2020 was issued by Additional Commissioner of Customs, Air Cargo Export, New Delhi, wherein M/s Freight Logistics was also made a party as they failed to obtain any authorization from the exporter and did not verify the correctness of KYC documents. In addition,, they were also found to be concerned with those goods which were found liable for confiscation under Customs Act, 1962 and were therefore, called upon to show cause to the Additional Commissioner of Customs Air Cargo Export, New Delhi as to why the penalty should not be imposed on them under Section 114(i) and 114AA of the Customs Act, 1962. On the basis of said show cause notice dated 22.12.2020, an inquiry for violation under CBLR, 2018 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CBLR, 2018. On adjudication, the Commissioner concluded that active role was played by Shri Kumod Kumar Choudhary, employee of the CB and Shri Pushpraj Yadav. Also that role of CB has not come out anywhere in the investigation and that he had taken immediate action by terminating the services of Shri Kumod Kumar Choudhary with effect from 16.05.2020 and also by lodging an FIR with the Police on the said date. Having noted that it does not prima facie appear to be judicious enough to continue suspension of the CB license especially where no role of CB has come out in the instant case, the following order was passed: In exercise of powers conferred in terms of Regulation 14 18 read with Regulation 17(7) of CBLR, 2018 (erstwhile Regulation 18 22 read with Regulation 20(7) of CBLR, 2013). (i) I refrain from revoking the CB License No. R-05/DEL/CUS/2008 (PAN : AABFF2641R) vlaid upto 28.08.2027 of M/s Freight Logistics, RZ-2048, Lane No. 26, Tugalakabad Extension, New Delhi-110019. (ii) I order for forfeiture of the whole amount of security deposit furnished by them; (iii) I impose penalty of Rs.50,000/- on M/s Freight Logistics. 7. Being aggrieved, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso submitted that violation of Regulation 10(a), 10(e) and 10(n) of CBLR, 2018 are grave in nature and the role of the Customs Broker is not limited to an act of omission or commission committed by their staff as he could not have done it without the knowledge of the seniors of the company and hence prayed for revocation of the Customs Broker License. 10. We have heard the learned counsel for the appellant and also the learned Authorised Representative for the Revenue and have perused the records of the case. 11. Before adverting to the merits of the matter on the allegations pertaining to Regulation 10(a), 10(e) and 10(n), we may quote the relevant provisions: 10. Obligations of Customs Broker. A Customs Broker shall (a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (e) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminating his services with effect from 16.05.2020 and also by registering FIR on the same day. The fact that within three days from the date the consignment was kept on hold on 13.05.2020, the appellant had acted diligently and there was no delay on the part of the appellant, therefore, no mala fides can be attributed on CHA. Even Sh. Kumod Kumar Choudhary who was absconding had surrendered H Card. In this regard, we may refer to the decision of the Delhi High Court in Kunal Travels (Cargo) Vs. CC (I G), IGI Airport, New Delhi - 2017 (354) ELT 447, (Del.) where the contention of the appellant had been that the documents were filed unauthorisedly by a person incompetent to do so and the action of the employee has not been defended and claimed ignorance and innocence of the contents of the consignment, it was held that there cannot be a presumption of its deliberate act or intention to defraud and the appellant cannot be faulted or punished in the manner it has been. The court also observed that given the factual finding that the CHA was not aware of the misuse of the G cards, (and thus, also unaware of the contents being smuggled), no additional blame can be heaped upon the CHA o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imposition of punishment of revocation of license. 16. We may refer to the decision of this Tribunal in Falcon Air Cargo and Travels (P) Ltd. Vs. Commissioner of Customs, New Delhi - 2002 (141) ELT 284 where one of the charges related to improper employee supervision and it was observed that: 7. .The Delhi High Court, while remanding the matter, had expressed the view that when revocation is directed it has to be only in cases where infraction is of a very serious nature warranting exemplary action on the part of the authorities, otherwise two types of actions (suspension and revocation) would not have been provided for.........the authorities while dealing with the consequences of any action which may give rise to action for suspension, revocation or non-renewal 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(1)(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 . Similar views were echoed by the Tribunal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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