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TMI Blog2024 (6) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... for this reason, adjudication authority held that the rigors of provisions of the Indian Evidence Act, 1882 are not applicable to quasi-judicial proceedings as held by Supreme Court in the matter of CC Vs M/s Orient Enterprise [ 1996 (12) TMI 389 - SC ORDER] . Non-compliance with the provisions of Section 138C of the Customs Act, 1962 - HELD THAT:- Unless the requirement of Section 65B of the Evidence Act is satisfied, such evidence cannot be admitted in any proceeding. Since Section 138C of the Customs Act is pari materia to Section 65B of the Evidence Act, the evidence in the form of computer printouts, etc., recovered during the course of investigation can be admitted only subject to the satisfaction of the sub-section (2) of Section 138C - There is no reason forth coming in the impugned order specifying the reason for rejecting request of cross examination of these two employees, who had given statements as well as furnished documents retracted from the computer belongs to Appellant which are relied by Adjudication Authority to give finding against the appellant. Such documents cannot be considered as admissible evidence specially in the absence of certification as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 - HELD THAT:- Considering the suspension of the Customs Broker license since January, 2024, a lenient view can be taken regarding penalty. Thus, the penalty imposed on the appellant under Regulation 18(1) of the CBLR, 2018 is reduced to Rs. 40,000/-. The impugned order is modified and appeal is partially allowed by setting aside revocation of the Customs Broker license and forfeiture of security deposit under section 14 of the CBLR, 2018. The penalty imposed on the appellant under Regulation 18(1) of the CBLR is reduced to Rs. 40,000/-. Appeal allowed in part. - MR. P.A. AUGUSTIAN, MEMBER (JUDICIAL) AND MR. PULLELA NAGESWARA RAO, MEMBER (TECHNICAL) Mr. M.S. Sanjeev Kumar, Advocate Appeared for Appellant Mr. Maneesh Akhoury, Authorized Representative for Respondent ORDER M/s. Ajay Overseas Shipping, appellant in the present appeal is challenging the order of revocation of the Customs Broker (CB) license. Appellant was holding Customs Broker license issued by the Respondent. Alleging that some cargo companies in collusion with the Appellant and other customs brokers were misusing the Transfer of Residence (TR) facility extended to NRIs, proceedings were initiated. As part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when Appellant had reason to believe that some of the consignments are imported in violation of the provision of law, it was brought to the notice of the Deputy Commissioner of Customs vide letter dated 12.09.2019. However, no proceedings were initiated by the respondent. The Learned Counsel for the Appellant also submits that the alleged violation of section 10(e) of the Customs Broker Licensing Regulation, 2018 is also unsustainable, since the Appellant had exercised due diligence to ascertain the correctness of the information furnished by the importer. In support the Learned Counsel for the Appellant also brought our attention to the Baggage Declaration made by the passengers who are allegedly involved in import of non-bonafide goods. The declaration made by the passenger furnishing details of goods and certificate to the effect that all goods belong to them. As regarding recovery of the packing list allegedly from the computer of the Appellant, during investigation, statement were recorded from the Managing Partner under Section 108 of the Customs Act, 1962 and the Managing Partner of Appellant, who is involved in day to day activities clearly deposed that he is ignorant abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds belong to others, ought to have proceeded with adjudication proceedings by issuing notice to all the person on whose name or who has brought the goods in passenger's name and should have release the goods to its actual owners. 6. Regarding forfeiture of deposit, Learned Counsel for the appellant submits that there is no proposal in the SCN for forfeiture of deposit. Learned Counsel draw our attention to SCN where it is stated that :- 20. Therefore, M/s Ajay Overseas Shipping holders of Customs Broker License bearing No. 222 (PAN -AAJFA5489L) is required to show cause to Commissioner of Customs, Custom House, Willington Island, Cochin-682 009 as to why i. The Customs Broker License should not be revoked under Regulation 14 of the CBLR, 2018, as per the procedures under Regulation 17 ibid, on account of violation of Regulation10 (d) and 10 of the CBLR, 2018 and, ii. Penalty should not be imposed on them under Regulation 18 of CBLR, 2018 on the grounds mentioned above. 7. The Learned Counsel also relied ON following decisions in support of the submission regarding admissibility of the document relied by the Adjudicating authority, the unsustainability of the finding if the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 138C of Customs Act, 1962, Learned AR submits that the documents were retrieved from the computer belonging to the appellant, downloaded by appellant s staff and duly signed by them. Since there is no doubt about the correctness genuineness of the information given by the appellant and his staff in the printout from their own computers, it can be admitted as admissible evidence, without compliance with the provision of section 138C of Customs Act, 1962. 9. Regarding not allowing the request for cross-examination, the Adjudicating authority concluded that the list of witnesses was prepared indiscriminately for cross examination, which even included witnesses like Shri. Akhil and Smt. Bincy who have not at all rendered any statement. Further Shri. Mansoor Ali, an importer, who had imported the goods was also listed for cross examination. Moreover, Appellant himself admits that they had not given any inculpatory statement. The adjudication authority also relied the decision of Hon ble Supreme Court the matter of Narindrapal Singh Shargil Vs CC (2010 (259) E.L.T A19 (S.C), where it is held that when confronted with the request of cross-examination of 14 persons, it suggests t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for cross examination. Thus, the imposition of penalty, forfeiture of security deposit and revocation of the Custom Broker License is sustainable. Further, the learned AR relied on the following decisions:- 1. Laxmi Enterprises -2018 (361) E.L.T. 1054 (Tri.-Del) 2. Kishan Manjibhai Gadhesariya-(2023) 2 CENTAX 63 (Guj.) 3. Marico Logistics Pvt. Ltd-(2023) 2 Centax 129 (Cal.). 4. Stalin Joseph -2021(377) E.L.T. 13(Mad.). 5. Harindrapal Singh Shergil-2010 (259). E.L.T. A19 (S.C). 6. Rajendra Prakash Pawar -2020 (374) E.L.T. 10(Kar). 12. Heard both sides, we have gone through the submissions and finding in the impugned order. As per the impugned order, the Adjudication authority concluded that email communication relied in the Show cause Notice is admissible evidence even in the absence of the certification under the provisions of Section 138C of the Customs Act, 1962. Such finding is given on the ground that proceedings under CBLR, 2018 are quasi-judicial proceedings and in quasi-judicial proceedings, the evidence is appreciated on the principles of preponderance of probability and quasi-judicial authority does not have to prove things beyond doubt as in the case of criminal proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r certain circumstances, this right of cross-examination can be taken away. The court also observed that such circumstances have to be exceptional and that those circumstances have been stipulated in Section 9D of the Central Excise Act, 1944. The circumstances referred to in Section 9D, as also in Section 138B, included circumstances where the person who had given a statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay and expense which, under the circumstances of the case, the Court considers unreasonable. It is clear that unless such circumstances exist, the Noticee would have a right to cross-examine the persons whose statements are being relied upon even in quasi-judicial proceedings. The Division Bench also observed as under: - 29. Thus, when we examine the provision as to whether the provision confers unguided powers or not, the conclusion is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary powers upon the quasi-judicial authority. The very fact that the statement of such a person can be treate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the computer was managed by his staff Smt. Shiny Vinod. In her statement also she categorically stated that the email belongs to appellant is handled by her and by another staff Ms. Bency who left office of the appellant during investigation. There is no admission made by Managing Director of the firm regarding his knowledge about the alleged illegal activity and even, if the documents were retrieved from the computer managed by staff Smt. Shiny Vinod and Ms. Bency, in spite of giving specific request for cross examination, no opportunity was extended by Adjudication Authority. There is no reason forth coming in the impugned order specifying the reason for rejecting request of cross examination of these two employees, who had given statements as well as furnished documents retracted from the computer belongs to Appellant which are relied by Adjudication Authority to give finding against the appellant. Such documents cannot be considered as admissible evidence specially in the absence of certification as per Section 138C of Customs Act, 1962 and when no opportunity extended for cross examination as per Section 17 of CBLR 2018. 17. Regarding violation of section 10(d) of CBLR 2018, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This also mentioned that the passenger had handed over or connected documents to appellant for clearance. Customs Broker is not expected to analyze various parameters including appearance of passenger to find out whether he can afford to ship a 40 feet container from his or her income as submitted by Learned AR. If no such information is forth coming from the statement recorded from the Managing partner of the firm, no presumption can be drawn that the appellant failed in scrutinize the documents and failed to due diligence as submitted by Learned AR. However, from the facts of the present case, the list of persons on whose behalf the goods were exported by the overseas agency is available in the official mail of the Appellant and there is no categorical denial on behalf of appellant to that effect that there is no such e-mail available in the g-mail account of the Appellant. Though the document retrieved from the email communication of the appellant cannot be considered as admissible evidence in the absence of compliance with 138C of the customs Act, 1962, in the absence of the categorical denial regarding presence of such document in email of the appellant, only presumption can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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