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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 ..... ions of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ULAR/KNP/2016 dated 28.09.2016 (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 Lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te) for necessary action under Regulation 16 and/or Regulation 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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. 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibition: Provided further that where the license of the Customs broker is suspended as a consequence to prohibition, the time period 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 Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch means, the impugned consignment was attempted for the clearance without obtaining the requisite authorization by Shri Prakhar Gupta from the importer Further, 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al (Postinaca Sativa L) are not allowed to be imported into India but they imported these items. Further, dried plant material of Gulgafiz (Gentiana Olivieri G) for medical purpose is allowed 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintain 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 provisions of relevant 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 Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to discharge his duties as a Customs Broker. I totally agree with the Inquiry report submitted by the Assistant Commissioner of Customs, CCSI Airport Lucknow and find that M/s Prakhar Gupta, Customs Broker has contravened the Regulations 10(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s soon as he came to know about it, is an after-thought and concocted find that Shri Prakhar Gupta, in his statement dated 04.03.2022, stated that the importer M/s JCS Botanicals, New Delhi and Shri Awadhendra Kumar (one director of Ms Goodwings Maritime Pvt. Ltd) contacted him 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I find that the party Shri Prakhar Gupta has rendered himself liable for action under Regulation 14 of CBLR, 2018. I also find that the party Shri Prakhar Gupta has rendered himself liable for action under Regulation 18 of CBLR, 2018." 4.4 From the plain reading of the impugned order 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement dated 04.03.2022, Shri Prakhar Gupta S/o Shri Pankaj Kumar Gupta, 117/H-2/115, Pandu Nagar, Hans Nagar, Kanpur Nagar Uttar Pradesh 208005 (CHA No. 05/CB/REGULAR/KNP/2016) & (ASLPG533HCH003), on being shown copy of the letter dated 21.02.2022, authorizing therein Shri Sanjay Kumar, stated that though the signatures on the 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 custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar inter-alia stated that he is one of the two directors of M/s Goodwings Maritime Pvt. Ltd. H.No. 265, Flat No. FF, Bhuyia Chowk, Mehrauli South Delhi-110030 that M/s Goodwings Maritime Pvt. Ltd. is engaged in the business of freight forwarding and clearance of import and export goods; that the consignment under Bill of Entry No. 7368812 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Mishra), so, on 21.02.2022, I directed Shri Sanjay Kumar to go and get examination done as recommended by Shri Prakhar Gupta. On being shown the e-mail dated 21.02.2022 of Shri Prakhar Gupta and statement dated 04.03.2022 of Shri Prakhar Gupta, wherein he claimed that his Customs Broker License has been used without his authorization and 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "[email protected]" from his email address [email protected]. Admittedly all the persons who are concerned with the clearance of the said goods happen to be employee M/s Goodwings Maritime Pvt Ltd. Interestingly in the present case though an authorization letter dated 21.02.2022 has been said to be signed and issued by the Appellant but the fact about denial of the his role in respect 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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