9911796707
TMI Blog2024 (8) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... SE [ 2015 (9) TMI 1151 - DELHI HIGH COURT] held that ' This would include circumstances where the person who had given the statement was dead or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances, the Court considers unreasonable. It was held by the Court in BASUDEV GARG, ARUN GUPTA, ANIL GOEL VERSUS COMMISSIONER OF CUSTOMS [ 2013 (5) TMI 350 - DELHI HIGH COURT] that it is clear that unless such circumstances exist the noticee would have a right to cross-examine the person whose statements are being relied upon even in quasi judicial proceedings.' In the present case, the Appellant questioned the integrity of the statements of the persons recorded under Section 108 of the Customs Act, 1962. Such statements were required to be tested through cross-examination. Despite specific request by the Appellant to cross examine such witnesses, no attempt was made to secure their presence in the adjudication proceedings - Provisions of Regulation 17(4) were given a complete go-by. Not allowing the Customs broker an opportunity to cross-exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally operated by the Shri Pankaj Thakker of Ghandhidham, who was a partner in Customs Broking firm M/s. Krishna Shipping and Allied Services. 3. Accordingly a show cause notice dtd. 22.09.2023 was issued to the appellant under Regulation 14 and 18 of CBLR 2018 alleging various contravention under Regulation 10(a),10(d),10(e),10(f),10(n) and 13(12) of the CBLR, 2018 which culminated into impugned order wherein the Commissioner revoked the license and ordered for forfeiture of entire security deposit and imposed penalty of Rs. 50,000/-. The appellant is in appeal against this impugned order. 4. Shri Vikas Mehta Ld. Consultant appearing on behalf of the Appellant submits that the impugned order passed by the Ld. Commissioner being in gross violation of principles of natural justice is not legally sustainable. As the Appellant was never provided the copy of offence reports prepared by DRI as well as statements recorded by DRI based on which these offence reports were prepared and on the basis of which the show cause notice was issued that has eventually resulted in revocation of the Customs Broker licence of Appellant. 5. He also submits that the lower authorities have defined the sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Broker and his employee are two different legal entities and hence, a Customs Broker cannot be held responsible for the act or omissions of his employee where there is no appointment to act as Customs Broker. In this case, the license under the CBLR, 2018 is issued to the appellant and not Shri Pankaj Thakkar, who is a different legal entity. 10. Shri Prashant Tripathi, Learned Superintendent (AR) appearing on behalf of department reiterated the findings given by Learned Commissioner of Customs. 11. Heard both sides and perused the records. 12. We find that in the present matter the Ld. Commissioner nowhere disputed the facts that the appellant requested for relied upon documents and cross-examination of witness. Alleging violation on the part of the appellant Customs Broker, the Commissioner Customs initiated proceeding under CBLR, 2018 (erstwhile CBLR, 2013) by issuing a notice to the appellant; Inquiry Officer was appointed and on the basis of the said Inquiry report, in the impugned order the adjudicating authority directed revocation of license, forfeiture of security deposit and imposition of penalty of Rs. 50,000/- on the appellant. 13. We find that the main contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard in person by the Principal Commissioner of Customs or Commissioner of Customs, as the case may be. 15. We also find that department in the present matter relies upon the statements of witnesses. The right of cross-examination has been recognized under Regulation 17(4) of the CBLR Regulations, 2018, which requires Inquiry Officer to give reasons if he intends to deny such right to the Customs Broker. Recognizing the right of cross-examination, in the case of Flevel International v. Commissioner of Central Excise - 2015 SCC OnLine Delhi 12173 : 2016 (332) E.L.T. 416 = [2015] 62 taxmann.com 294 (Delhi)/52 GST 827 (Delhi) held as under :- 42. It is settled law that the denial of an opportunity of cross-examination of a witness whose statements have been relied upon in the adjudication order would vitiate the order of adjudication. In Basudev Garg v. Commissioner of Customs - 2013 (294) E.L.T. 353 (Del.), this Court referred to Section 9D of the CE Act and noted that even while upholding its constitutional validity in J K Cigarettes Ltd. v. Collector of Central Excise - 2011 (22) S.T.R. 225 (Del.), a Division Bench of this Court had observed that the circumstances under which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -by. Not allowing the Customs broker an opportunity to cross-examine the persons examined in support of the grounds forming the basis of these proceedings has resulted in serious prejudice to the Appellant. 18. We also find force in argument of appellant that Customs Broker and his employee are two different legal entities, hence a customs broker cannot be held responsible for the act or omissions of his employee where there is no appointment to act as Customs Broker. We find that Section 2(d) of Customs Brokers Licensing Regulations, 2018 Customs Broker means a person licensed under these regulation to act as an agent on behalf of the importer or an exporter for purpose of transaction of any business relating to the entry or departure of conveyances of the import or export of goods at any Customs Station including audit. In the present there is no dispute on the fact that license under the CBLR, 2018 is issued to the Appellant and not Shri Pankaj Thakkar, who is a different legal entity. 19. Moreover, we also notice that in the present matter it is on records that appellant have not handled any customs documents. The documents did not bear the name of appellant. 20. In these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
