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TMI Blog2024 (8) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... f Regulations 10 (a), (b), (d),(e),(f),(k) (n) of the CBLR, 2018 - From the excerpts as recorded in impugned order it is not found that even an iota of evidence as per which it can be concluded that Appellant was responsible for filing of the said bill of entry. Proprietor of importer Mr Archit Sharma specifically states that he never had contacted or met the Appellant or was even under impression that bill of entry for clearance of his consignments were to filed by the Appellant. When Appellant has denied about having signed or issued any such authorization letter the signatures on the letter have not been subjected to any forensic examination by a hand writing expert. Except for statement of the Shri Awadhendra Kumar that he was working as per agreement letter dated 16.07.2018 in partnership with Appellant there is nothing to implicate the Appellant in the entire proceedings. Even copy this agreement letter submitted by Shri Awadhendra Kumar has not been subjected to any forensic examination. On the contrary this letter goes on to establish the case that Appellant has stated in his statement to effect that his login id and password has been compromised and used for filing this bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 (PAN:ASLPG5339H) issued to Shri Prakhar Gupta, 117/H-2/115, Pandu Nagar, Kanpur-208025,' with immediate effect till further orders. 2.1 Appellant is holding a Customs Broker License No. 05/CB/REGULAR/KNP/2016 dated 28.09.2016 (PAN: ASLPG5339H) issued by the Commissioner of Central Goods and Service Tax, Kanpur. The Customs broker is registered under Regulation 7(3) of Customs Broker Licensing Regulation, 2018 (here-in-after referred as 'CBLR, 2018') to work in Customs Commissionerate - New Delhi. 2.2 Investigations were taken against M/s JCS Botanicals, New Delhi- in respect of a bill of entry No.7368812 dated 04.02.2022 at ICD Jhattipur, Panipat through the Appellant for clearance of their goods as declared by them. On completion of investigations matter have been adjudicated as per Order-in-Original No. DLI/CUSTM/PREV/AK/JC/498/2021-22 dated 28.03.2022 holding as follows: ORDER i) l order for confiscation of impugned goods of M/s JCS Botanicals, First Floor, M-163, Greater Kailash Part-ll, New Delhi-1 10048 (I:C-LY7P586621) under bill of entry no. 7368812 dated 04,02.2022 totally valued at Rs. 28,74,114/- (Rupees Twenty Eight Lakhs Seventy Four Thousands One Hundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 of CBLR 2018. 9. This order is being issued without prejudice to any other action that may be taken against the CB or any other person(s)/ firm(s) etc under the provisions of the Customs Act, 1962 and Rules/Regulations framed there under or any other law for the time being in force for the present or any other past violations committed by them 2.4 Consequently for contravention of Regulations 10(a), 10(b), 10(d), 10(e), 10(f), 10(k) 10(n) of the CBLR, 2018 vide Order No.01/COMMR./CUSTOMS/LKO/2022-23 dated 24.05.2022 was suspended. 2.5 Subsequently by order referred in para 1.2 above, the order of suspension has been further extended. Appellant has filed C/70439/2022 against the said order. 2.6 As per proviso to regulation 16(2) of CBLR, 2018, the further proceedings were followed as provided in Regulation 17 of CBLR, 2018 and accordingly a Show cause Notice No. 01/COMMR./CUSTOMS/ LKO/2022-23 dated 22.07.2022 was issued for the contravention of Regulations 10(a), (b), (d), (e), (f), (k) (n) of CBLR, 2018. 2.7 Assistant Commissioner of Customs, CCSI Airport, Lucknow was appointed to inquire into the matter submit his inquiry report for further proceedings 2.8 Vide letter C.No. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods which were not permitted for import into India and cannot be cleared by Customs authorities. Appellant has thus contravened the provisions of Regulation- 10 (d) of the CBLR, 2018. Appellant overlooked the laid down procedures for handling and submission of documents for import of impugned goods with his client and other stakeholders and failed to ascertain the correctness of information in relation to filing of Bill of Entry other documents in relation to clearance of Import consignment under the impugned bill of entry for the reasons best known to him in contravention of the provisions of Regulation- 10 (e) of the CBLR, 2018. Appellant failed to observe the laid down procedures for filing documents for import of goods with his client and other stakeholders and did not intimate the provisions of law for the import of the impugned goods to his client who was entitled to the same contravening the provisions of Regulation- 10 (f) of the CBLR, 2018. Appellant failed to maintain up to date records such as bill of entry and other documents in respect of the impugned import consignment and has attempted unsuccessfully to subvert the accountability for failure to comply with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod specified in regulation 16, shall be reckoned from the date of such suspension From Regulation 15, it is clear that the time period of the prohibition shall not exceed one month from the date of prohibition i.e. from 26.04.2022. After one month from prohibition, the Customs Broker might transact their business in the jurisdiction of Delhi Customs Commissionerate. Meantime, consequence to prohibition order dated 26.04.2022, the suspension order under Regulation 16(1) of CBLR, 2018 and continuation of suspension order under Regulation 16(2) of CBLR, 2018 for contravention of provisions of Regulation 10 of CBLR, 2018 were issued, which are consequence proceedings in the matter, as per law. Hence, I find that the allegation of Customs Broker is not acceptable since the suspension order under Regulation 16(1) read with 2nd proviso to Regulation 15 was issued well within the period of prohibition. Therefore, it cannot be termed as double jeopardy. 12.7 Now, as regard to the allegation of the Customs Broker that cause of incident related to Delhi Customs only and not related to other Customs area, I find this not maintainable under Regulation 15, 16 17 of CBLR, 2018. The prohibition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, I find that the two firms, namely, Ms Prakhar Gupta and M/s Goodwings are in business since 2018-19 under mutual agreement. As per statement dated 21.03.2022 of Shri Awadhendra Kumar, he has been filing papers for clearance of import and export consignments on behalf of Customs Broker M/s Prakhar Gupta since 2018-19 as per mutual consent and agreement. In this regard, as para 2.11 of Order-in-Original dated 28.03.2022 issued by the Joint Commissioner of Customs (Preventive), New Customs House, New Delhi, an agreement dated 16.07.2018 was submitted to by Sh. Awadhendra Kumar states therein I hereby confirm you that I, Prakhar Gupta confirm that we (CHA-PRAKHAR GUPTA AWADHENDRA KUMAR) are partner at mutual understanding terms and in all circumstances we both are liable to handle the situation and transact business mutually and no financial liability shall fall on M/s Prakhar Gupta Hence, submission of M/s Prakhar Gupta that the consignment pertaining to B/E No. 7368812 was not authorized by him or he was not aware about the matter under scrutiny is an afterthought only and the said explanation arose only after the consignment was held up by Customs Authorities for further forma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to be imported only from China, but, in the instant case, the origin of country is Afghanistan In the instant case, M/s Prakhar Gupta failed to observe and has violated the obligations cast upon him under CBLR, 2018 by filing a B/E violating the laid down procedures in respect of such prohibited goods which were not permitted for import into India and cannot be cleared by Customs authorities in view of relevant Acts/Orders/Regulations. Therefore, the Customs Broker has failed to advise their client to act as per provisions of Customs Act, 1962 allied Acts / Orders and Regulations issued in this regard and contravened Regulation 10(d) of CBLR, 2018. (iv) Regulation 10 (e) of CBLR 2018: 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 or baggage. In the instant case, I find that the Customs Broker has not ascertained whether the declared goods were being imported into India as per prevailing law. He overlooked the laid down procedures for handling and submission of documents for import of impugned goods with his client and other stakeholders and failed to ascertain the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions made in this regard Further, I also find that Customs Broker Shri Prakhar Gupta and Shri Awadhenra Kumar of M/s Goodwings Maritime Pvt. Ltd. mutually agreed to work together. Shri Prakhar Gupta does not even know anything about impugned consignment and imported goods, so, non-maintenance of statutory records is explanatory per se. Thus, Shri Prakhar Gupta of Ms Prakhar Gupta has contravened the provisions of Regulation 10 (k) of the CBLR, 2018. (vii) Regulation 10 (n) of CBLR 2018: verify correctness of Importer Exporter Code (IEC) number, Goods and Services Tax Identification Number (GSTIN), identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. In the instant case, I find that Shri Prakhar Gupta is in agreement with M/s Goodwings Maritime Pvt. Ltd. that they will work together in partnership and this fact has been admitted by the both Customs Brokers in their statements rendered before the investigating officers and relied upon in the prohibition order dated 26.04.2022. Shri Pakhar Gupta has also stated that they had mutual understanding to file papers with Customs in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a), 10(b), 10(d), 10(e), 10f(f), 10/(k) 10(n) of CBLR, 2018 12.10. Now, I want to discuss here the provisions of Regulation 14 of CBLR 2018. For the sake of brevity, I reproduce the same as below:- 14. Revocation of licence or imposition of penalty- The Principal Commissioner or Commissioner of Customs may, subject to the provisions of regulation 17, revoke the I51 license of a Customs Broker and order for forfeiture of part or whole of security, on any of the following grounds, namely:- (a) failure to comply with any of the conditions of the bond executed by him under regulation 8; (b) failure to comply with any of the provisions of these regulations, within his jurisdiction or anywhere else: (c) commits any misconduct, whether within his jurisdiction or anywhere else which in the opinion of the Principal Commissioner or Commissioner of Customs renders him unfit to transact any business in the Customs Station; (d) adjudicated as an insolvent; (e) of unsound mind; and (f) convicted by a competent court for an offence involving moral turpitude or otherwise. On plain reading of the above, I find that Regulation 14(b) clearly states that if any Customs Broker fails to comply with any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21.02.2022 and told him about the incident. I am of the opinion that M/s Goodwings Maritime Pvt. Ltd. had no reason to contact the party Shri Prakhar Gupta on 21.02.2022as the subject bill of entry was filed through Shri Prakhar Gupta's credentials. Shri Prakhar Gupta in his said statement, has also accepted to have received payments from M/s Goodwings Maritime Pvt. Ltd. through bank account of the party M/s Prakhar Gupta. From the above stated facts, I am of the opinion that the party Shri Prakhar Gupta e-mailed to Customs Authorities on 21.02.2022 only after coming to know that the subject Bill of Entry No.7368812 dated 04.02.2022 was marked for 100% examination by RMS and was examined by Customs Authorities on 21.02.2022 in presence of two independent witness and Shri Sanjay Kumar, he authorised representative of M/s Prakhar Gupta in this case As regard the denial of the party Shri Prakhhar Gupta not to have issued any authorization to Shri Sanjay Kumar, I find from the records that the party Shri Prakhar Gupta admitted that the signature on the authorization letter of Shri Sanjay Kumar seemed to be his own but he never signed it; I find it a lame excuse and a meek respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that Appellant have contravened the provisions of Regulation 10 (a), (b), (d),(e),(f),(k) (n) of the CBLR, 2018 we are constrained to observe that the same is nothing but dittoing of the findings recorded in the inquiry report without any application of judicial mind or thinking to regulation contravened and the facts in hand. 4.5 From the facts of case we find that the a bill of entry has been filed using the login id and password of the Appellant. Subsequently the consignment covered by the said bill of entry is found to be mis-declared and has been confiscated, allowed to be redeemed against payment of redemption fine, for re-export. 4.6 Except for the few statements, whose excerpts are reproduced in the impugned order no other evidence has been adduced in the entire proceedings to hold the Appellant guilty of contravention of various provisions of Regulations 10 (a), (b), (d),(e),(f),(k) (n) of the CBLR, 2018. To examine the role of the Appellant in the case we refer to the extracts of various statements as recorded in the impugned order: Statement dated 24.02.2022 of Shri Sanjay Kumar (the authorized representative during examination process) - In his statement dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same seems similar to my signature but he had not signed any such letter and the same had not been issued by him; that he does not know anything about this letter; that he cannot say who has signed this letter; that he does not have the original of this letter; that a consignment under bill of entry no. 7368812 dated 04.02.2022 was filed for import through his CHA License, however the same was not filed by him; that he does not know anything about the importer as he was never in contact of the said importer as the said consignment was filed by M/s Goodwings Maritime Pvt. Ltd.; that they are working in partnership with M/s Goodwings Maritime Pvt. Ltd. and they have understanding that they can file papers with customs in the name of my customs broker license; that he had never authorized M/s Goodwings Maritime Pvt. Ltd. in writing to file papers with customs in the name of customs broker license Prakhar Gupta and this was being done only on verbal understanding between CHA firm Prakhar Gupta and M/s Goodwings Maritime Pvt. Ltd.; that they never had any written agreement / authorization with M/s Goodwings Maritime Pvt. Ltd. for working under Customs Laws in their name; that they do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 368812 dated 04.02.2022 was filed neither by me nor by M/s Goodwings Maritime Pvt.; that the documents of this consignment were received by me on behalf of Customs Broker M/s Prakhar Gupta; that he personally work on behalf of M/s Prakhar Gupta for clearance purpose of import export consignments from Customs so he got these documents to file the papers with Customs Department for clearance of the said consignment and he filed these documents on behalf of M/s Prakhar Gupta; I have been authorized in this regard by the Customs Broker M/s Prakhar Gupta; that he does not have copy of the said authorization, and will submit the same; that he got the said documents in original from the Importer; that the letter dated 21.02.2022 authorizing Shri Sanjay Kumar, was issued by Shri Prakhar Gupta and he submitted purportedly original of the said letter dated 21.02.2022; that the original of the said letter dated 21.02.2022 was destroyed as the scan copy was sent to Shri Sanjay Kumar and that this is the letter in original written and prepared again to submit to the Customs Authorities; that he is working with M/s Prakhar Gupta in partnership; that he does not have any legal document but we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the authorization letter dated 21.02.2022 was not signed by him Shri Awadhendra Kumar stated that the facts represented by me above are true and correct and what Shri Prakhar Gupta has said may be due to some unfavorable conditions only known to him and he stated all irrelevant facts; that he has been filing papers for clearance of import and export consignments on behalf of Customs Broker M/s Prakhar Gupta since 2018-19 as per mutual consent from them and he will submit the agreements in this behalf by 22.03.2022. Statement dated 23.03.2022 of Shri Archit Sharma Prop. of M/s JCS Botanicals (the importer):- In his statement dated 23.03.2022, Shri Archit Sharma inter-alia agreed with all contents and manner of his previous statement dated 24.02.2022; that he does not have address email of the Customs Broker Shri Prakhar Gupta, but his contact no. known to him was submitted; that he never contacted the Customs Broker Shri Prakhar Gupta for clearance of this consignment; that the copy of hiring letter and other relevant documents to the Customs Broker in the instant case were sent to the customs broker through my e-mail address [email protected] to email accounts@goodwin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of clearance of the said consignment was intimated to customs by the Appellant by his email of the same date. Further original copy of the said authorization letter in the name of Shri Sanjay Kumar has not been produced by anyone at anytime during the investigation. When Appellant has denied about having signed or issued any such authorization letter the signatures on the letter have not been subjected to any forensic examination by a hand writing expert. Except for statement of the Shri Awadhendra Kumar that he was working as per agreement letter dated 16.07.2018 in partnership with Appellant there is nothing to implicate the Appellant in the entire proceedings. Even copy this agreement letter submitted by Shri Awadhendra Kumar has not been subjected to any forensic examination. On the contrary this letter goes on to establish the case that Appellant has stated in his statement to effect that his login id and password has been compromised and used for filing this bill of entry. In the order in original dated 28.03.2022 after examining all the evidence in paar 3.11 following has been recorded: Thus it appeared that Mr. Awadhendra Yadav presented a manipulated/ concocted docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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