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TMI Blog2024 (8) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... h the provisions of the Customs law. Further, if there was any doubt about the imported goods during the relevant point of time, from the time of its import to its storage in FTWZ under customs bond, then the appellants CB could have brought it to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC), but they failed to do so. Thus, the violation of Regulation 10(d) ibid, as concluded in the impugned order is sustainable. Violation of the Regulation 10(e) ibid - HELD THAT:- The charges framed under the SCN dated 09.03.2023 are an independent proceeding under CBLR, 2018 for which the adjudicating authority is required to give specific findings on the basis of inquiry proceedings conducted as per Regulation 17 and 18 ibid. Further, with respect of the packing lists containing the correct description, quantity etc., the appellants CB did not impart any specific information to the importers, rather it is the case that such information was provided by the importers to the appellants. Thus, it is not feasible to sustain this charge on the appellants CB, that they did not exercise due diligence to impart correct information to their clients on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Hari Radhakrishnan , Advocate for the Appellant Shri Ranjan Kumar , Authorized Representative for the Respondent ORDER PER : M. M. PARTHIBAN This appeal has been filed by M/s Mac Transoceanic Private Limited (herein after, referred to as 'the appellants'), holders of Customs Broker License No. 11/2661 assailing Order-in-Original CAO No. 44/CAC/PCC(G)/ SJ/CBS/-Adj dated 19.10.2023 (herein after, referred to as 'the impugned order') passed by the learned Principal Commissioner of Customs (General), New Custom House, Ballard Estate, Mumbai-I. 2.1. Briefly stated, the facts of the case are that the appellants herein are a Customs Broker (CB) holding a regular CB license issued by the Mumbai Customs under Regulation 7(2) of Customs Brokers Licensing Regulations (CBLR), 2018. A specific alert dated 11.10.2022 was received from National Customs Targeting Centre (NCTC), informing the Customs Central Intelligence Unit (CIU) of the Jawaharlal Nehru Customs House (JNCH) that goods imported by M/s Giriraj Corporation (IEC AAFPP 0369P) vide into bond Bill of Entry (B/E/) No. 1016547 dated 14.09.2022 is likely to be cleared from the bonded premises at M/s Arshiya Ltd., Free Trade Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Commissioner of Customs (General), Mumbai-I had concluded that there is a prima facie case against the appellants for having contravened Regulations 10(d) and 10(e) of CBLR, 2018. Accordingly, he had immediately suspended the CB license of the appellants under Regulation 16(1) of ibid, vide Order No. 73/2022-23-CBS dated 27.01.2023; and such suspension was continued vide Order No. 79/2022- 23 dated 28.02.2023; further the department had initiated show cause notice No. 40/2022-23 dated 09.03.2023 for initiating inquiry proceedings under Regulation 14 ibid read with 17 and 18 ibid, against violations of CBLR as above. 2.3. Subsequently, the Principal Commissioner of Customs (General), Mumbai-I had appointed the Inquiry Officer (IO) and the IO held personal hearings on 08.04.2023. Upon completion of the inquiry, a report was submitted on 23.08.2023 concluding that all charges framed against the appellants have been proved. Accordingly, the Principal Commissioner of Customs (General), Mumbai, being the licensing authority had passed the impugned order dated 19.10.2023 under Regulations 14, 17(7) and 18 ibid, for revoking CB License of the appellants, for forfeiture of entire amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M/s Infinity Fabric Hub LLP to carryout various transactions in India including Customs clearance, handling, transportation, warehousing etc., though the agreement loosely states in clause (A) that the appellants are engaged in the business of fabric product, including resale in DTA, the actual fact is that the appellants were only engaged in Customs clearance and allied services and the appellants are not at all engaging in sale of any fabric either for or on behalf of any person. He further stated that it is pertinent to note that the investigating officer has not brought out any document to establish that the appellants are engaged in sale of fabrics for or on behalf of any third party; no invoice or sale transaction in the appellants' name has been unearthed. 3.3 With regard to allegation that the appellants have failed to exercise due diligence to ascertain the correctness of the information that they were imparting to their client (importer) under Regulation 10(e) ibid, learned Advocate submitted that the role of the Customs Broker is to file the bill of entry/shipping bill based on the documents given to them by the Importer/Exporter. A Customs Broker is not expected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in order to evade customs duty and by not adopting the correct declaration of the imported goods by use of their knowledge of customs laws and work experience, and thus have failed to comply with the obligations cast upon them under CBLR. Learned AR pointed out that the argument placed by importers/CB stating that it is mistake in packing occurred at the suppliers' end is nothing but an afterthought, as such mistakes were found in all 16 other consignments, prove that it was pre-mediated act of the importers and the appellants CB. Thus, learned AR justified the action of Principal Commissioner of Customs (General) in revocation of the appellant's CB license, forfeiture of security deposit and imposition of penalty in the impugned order and stated that the same is sustainable in law. It is further stated by him that the impugned order viewed that the timelines specified in CBLR are directory in nature and not a mandatory factor. Thus, he submitted that the impugned order is sustainable. 5. Heard both sides and perused the case records. We have also considered the additional written submissions given in the form of paper books by learned Advocate for the appellants as well as Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reeing with the findings of the inquiry authority as the specific omissions and commissions on the part of appellants for contravention of Regulations 10(d) and 10(e) ibid, have enabled the importers to evade payment of total customs duty of Rs.2,63,05,375/-. In respect of delay in completion of inquiry proceedings, without adhering to the timelines gives under the CBLR, he had relied upon the judgement of the Hon'ble High Court of Bombay in the case of Principal Commissioner of Customs (General), Mumbai Vs. Unison Clearing P Ltd., 2018 (361) E.L.T. 321 for concluding that time factor under CBLR is directory in nature and not a mandatory factor. 7.2 We find from the factual matrix of the case, that there was a specific alert about the mis-declaration of imported goods by the National Customs Targeting Centre in one of the ex-bond B/E No.2024008 dated 07.10.2022 filed by the appellants CB in respect of the importer M/s Giriraj Corporation (IEC AAFPP 0369P) for DTA clearance through container No. ZCSU 7510665. These goods have been earlier imported through filing an into bond Bill of Entry (B/E/) No. 1016547 dated 14.09.2022 and was stored in Arshia FTWZ. The examination conducted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers"); (B) The Principal has been authorized by (1) Dixon Healthcare Nutrients And Supplements Pvt. Ltd. (2) Giriraj Corporation (3) Infinity Fabric Hub LLP to carry out in India various transactions including customs clearances, handling, transportation, warehousing, import/export of cargo and such other related services as may be agreed upon between the parties vide Letter of Authority dated 21st July, 2022 annexed as Annexure 3; (C) Pursuant to the agreement executed between the Agent and Arshiya Panvel FTWZ Services Private Limited (FTWZ Co-Developer), the Agent is a unit holder in Warehouse No.3 at Arshiya Free Trade & Warehousing Zone….., the Agent, is entitled to provide various warehousing and other services as authorized operations; (D) The Principal is desirous of appointing the Agent as its agent in India to carry out certain service activities for and on its behalf and the Agent is willing to be appointed as the Principal's non-exclusive agent, in India, for providing various service activities stated in Annexure - 2 ("Service Activities") out of the service activities enumerated in Annexure-1 ("Agent Services"). xxxx xxxx xxxx 4.6. Declaration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red office…is the authorized logistics and supply chain representative of Dixon Healthcare Nutrients And Supplements Pvt. Ltd. and they have been authorized to do the following facility….." "Date: 21/07/2022 TO WHOMSOEVER IT MAY CONCERN This is to certify that M/s Mac Transoceanic Pvt. Ltd. having its registered office…is the authorized logistics and supply chain representative of Giriraj Corporation and they have been authorized to do the following facility….." "Date: 21/07/2022 TO WHOMSOEVER IT MAY CONCERN This is to certify that M/s Mac Transoceanic Pvt. Ltd. having its registered office…is the authorized logistics and supply chain representative of INFINITY FABRIC HUB LLP and they have been authorized to do the following facility….." 7.5 Plain reading of the above contract between the appellants CB with the Arshiya FTWZ co-developer along with the authority executed by three importers, clearly provides that such an arrangement is to facilitate the business of all the concerned parties. A number of value-added services, right from obtaining the imported goods from the port to the FTWZ, including all requisite services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as concluded in the impugned order is sustainable. 8.1. Learned Principal Commissioner of Customs (General) had come to the conclusion that the CB had violated the provision of Regulation 10(e) ibid, as it has been established in a parallel customs proceedings that the appellants CB had committed certain omission and commission for which they were imposed with a penalty of Rs.50,000/- under Section 112(a) of the Customs Act, 1962, in each of the import cases, while adjudication of the case by the Additional Commissioner of Customs, JNCH Customs. Further, the learned Principal Commissioner of Customs (General) had found that the appellants CB had failed to file the B/Es properly as per the correct packing lists. Thus, he had concluded that the appellants CB are liable for violation of the Regulation 10(e) ibid. 8.2. The charges framed under the SCN dated 09.03.2023 are an independent proceeding under CBLR, 2018 for which the adjudicating authority is required to give specific findings on the basis of inquiry proceedings conducted as per Regulation 17 and 18 ibid. Further, with respect of the packing lists containing the correct description, quantity etc., the appellants CB did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2 Furthermore, in order to appreciate the importance of the role of Customs Broker/Custom House Agent and the timely action which could prevent the customs duty evasion/frauds, we rely on the judgement of the Hon'ble Supreme Court in affirming the decision of the Co-ordinate Bench of this Tribunal in the case of Commissioner of Customs Vs. K.M. Ganatra & Co. in Civil Appeal No.2940 of 2008 reported in 2016 (332) E.L.T. 15 (S.C.). The relevant paragraph of the said judgement is extracted below : "15. In this regard, Ms. Mohana, learned senior counsel for the appellant, has placed reliance on the decision in Noble Agency v. Commissioner of Customs, Mumbai 2002 (142) E.L.T. 84 (Tri. - Mumbai) wherein a Division Bench of the CEGAT, West Zonal Bench, Mumbai has observed:- "The CHA occupies a very important position in the Customs House. The Customs procedures are complicated. The importers have to deal with a multiplicity of agencies viz. carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through these agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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