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TMI Blog2024 (5) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... were seized and an intimation of the same was sent to Customs, Ludhiana; investigation was conducted against the Customs Broker to examine his role an on completion of the investigation, it appeared to the Department that the Customs Broker failed to comply with various provisions of Regulations of CBLR, 2018; a Show-Cause Notice was issued to the appellants; an enquiry officer was appointed who submitted his report dated 26.07.2023 recommending action against the Customs Broker/ appellant under Regulations 14 & 18 read with Regulation 17 of CBLR, 2018; Commissioner passed the impugned order accordingly. 3. Shri R.K. Hasija, assisted by Shri Shivang Puri, learned Counsels for the appellant, submits that the provisions of Regulation 17, which are akin to Section 38B of the Customs Act, 1962 were not complied with as opportunity to cross examine has not been provided to the appellant. He further submits that the allegation, that the goods exported were red sanders, is not substantiated; the expertise, of the forest guard who examined the consignment and certified the logs to be red sanders, is not free from doubt as red sanders is not grown around Mundra and the view taken by the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 - CUS dated 08.04.2010 provides that it is enough if the Customs Broker verifies the KYC documents prescribed and listed in the annexure; once the Customs Broker verifies the KYC, his obligation is discharged as held in Anax Air Services Pvt. Ltd.- 2022 (1) TMI 115- CESTAT-NEW DELHI, Mauli Worldwide Logistics- 2022 (7) TMI 368- CESTAT NEW DELHI; it is pertinent to note that the same KYC were submitted to other service providers like Radiant Maritime India, CONCOR and TMS Logistics and none of them ever doubted the veracity of the same; therefore, the appellant alone cannot be faulted with. 5.3. Learned Counsel submits, also, that it was blatantly false to allege that the appellant has not cooperated with the authorities in violation of Rule 10(q) of CBLR, 2018; the appellant has joined the investigation as and when summoned and rendered his statements; alleged non-cooperation of Shri Manjeet Singh and Shri Manish Kumar of the exporter cannot be a proof for non-cooperation of the appellant; the appellant has been illegally penalized for the actions of a third party. 5.4. Learned Counsel submits, in addition, that the allegation of violation of Rule 13(3) of CBLR, 2018 is basel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the investigation; thus the custom broker had violated the regulation 10(d) and 10(n) of CBLR, 2018. 8. Learned Authorized representative submits also that a custom broker has not bothered to verify the identity of the persons who were acting on his behalf; he has allowed his employees to sign the documents without any authorization. He further submits that the custom broker has permitted unauthorized persons to file documents on his behalf for monetary gains; thus the custom broker had violated the regulation 13 (3) and 13(12) of CBLR, 2018. Ld. Authorized representative relies on the decision of M/s K.M. Gantar and Company and submits that any contravention of the obligation even without intent would be sufficient to render the custom broker liable for penal provisions under CBLR, 2018 and that forgery nullifies everything as held in the case of M/s Swastik Cargo and M/s Munjal Showa. 9. Heard both sides and perused the records of the case. The allegation against the custom broker is that by his commissions and omissions the custom broker has helped the smuggling of red sanders and has rendered himself liable for penal action under CBLR, 2018. It is alleged that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related to custom broker. We find that there are some inadequacies in the working of the appellant as far as the work of custom broker is concerned. We find that the custom broker vide his statement dated 04.04.2022 has accepted his fault. It is evident that the customs broker neither conducted the business personally nor through an authorized representative duly approved by customs; the custom broker shared his password with unauthorized persons and sublet his license for pecuniary benefit; he accepted that Shri Manish Kumar Shrivastav uploaded the documents in the icegate and that he has not authorized anyone; during his meeting with Shri Manjeet Singh he was offered many clients in lieu of the license; Shri Manish Kumar Shrivastav assured him to pay Rs. 20,000/- per month; Shri Manjeet Singh in fact paid Rs. 15,000/- for the renewal of the license; the custom broker got two lakhs for allowing four persons to represent his firm; he received all the payments from AS clearing belonging to Shri Manjeet Singh. 12. We find, from the statement dated 04.04.2022 of the custom broker, inter-alia, that: * The appellant dependent on the assurance given by Shri Manjit Singh that he knew t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntent would be sufficient to invite upon the Customs Broker the punishment listed in the Regulations. The department entrusts Customs Broker with lots of responsibilities. But in the extant case, Sh. Sanjay Jain had acted in dubious manner and violated this trust imposed in him by the department and acted casually for personal financial gains. Sh. Sanjay Jain failed to keep check on his client M/s Brilliant International, Ludhiana, to comply with the statutory provisions provided in the Customs Act, 1962, Foreign Trade Policy, CITES etc. Statutes and never attempted to check the authenticity and correctness of either the persons employed by him for undertaking the customs clearance works. His inaction appears deliberate to earn only financial benefit for allowing mis-use of his license. Thus, he alongwith his employees has created a nexus in which he deliberately allowed his accomplices to mis-use his CB license for his personal financial gains. 14. We find that Tribunal in the case of Noble Agency v. Commissioner of Customs, Mumbai- 2002 (142) ELT 84 (Tri. Mumbai) has held as follows: "The CHA occupies a very important position in the Custom House. The Customs procedures are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty, the extent to which he is conversant with the provisions of certain enactments etc. Therefore the grant of licence to act as a Custom House Agent has got a definite purpose and intent. On a reading of the Regulations relating to the grant of licence to act as Custom House Agent, it is seen that while Custom House Agent should be in a position to act as agent for the transaction of any business relating to the entry or departure of conveyance or the import or export of goods at any customs station, he should also ensure that he does not act as an Agent for carrying on certain illegal activities of any of the persons who avail his services as Custom House Agent. In such circumstances, the person playing the role of Custom House Agent has got greater responsibility. The very prescription that one should be conversant with the various procedures including the offences under the Customs Act to act as a Custom House Agent would show that while acting as Custom House Agent, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as a CHA by taking advantage of his access to the Department. The grant of licence to a person to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , while answering the questions now referred by the Tribunal in C/Ref/13/97 in favour of the respondent holding that the order of the Tribunal to the effect that on further deposit of Rs. 25,000/-, the licence of the Applicant should stand renewed with effect from 1-1-1997 is wholly illegal and improper, the various questions referred in C/Ref/13/97 are answered against the Applicant. The Reference Case is disposed of accordingly. 16. In view of the above, we find that the appellant custom broker has allowed his license to be used by unauthorized persons for pecuniary gains. We find that such a casual behavior by the appellant is certainly breach of the trust reposed on the custom broker by the department. Any continuation of the license would have been detrimental to the interest of the revenue and the exporters. Therefore, we hold that the revocation of license has been correctly done. However, having said so we are of the considered opinion that the penalty imposed should be commensurate with the omission or commission. We find that revocation of license itself is enough punishment in such cases. As the security deposit is ordered to be forfeited imposition of penalty of Rs. 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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