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TMI Blog2024 (10) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... med that he had allowed the appellant to use his licence to file bill of entry although he denied allowing them to use his licence in respect of this bill of entry. It needs to be pointed out that bills of entry are filed online through the Customs EDI system. Therefore, it is imposible for anyone to file a bill of entry using the credentials of a Customs Broker unless the Customs Broker lends its credentials to such a person. In this case, admittedly Shri Prakhar Gupta had lent his credentials to the appellant. Shri Awadhendra Kumar, Director of the appellant used those credentials to file this Bill of entry. The importer only contacted the appellant and not Shri Prakhar Gupta and sent the relevant documents to the appellant. Admittedly, the appellant filed the bill of entry using the credentials of Shri Prakhar Gupta. Shri Prakhar Gupta clearly erred in subletting his licence to the appellant. However, the appellant also violated the conditions of CBLR and instead of obtaining an authorization to file the bill of entry from the importer in its own name and then filing the bill of entry using its own credentials it filed the bill of entry using the credentials of Prakhar Gupta. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port prohibited goods, the appellant filed the bill of entry in an attempt to clear them. In order to conceal this fact it used the credentials of another Customs Broker M/s Prakhar Gupta. There are no manner of doubt that the appellant violated Regulation 10 (d). Violation of Regulation 10 (e) - HELD THAT:- Regulation 10 (e) requires the Customs Broker to exercise due diligence to ascertain the correctness of any information which he imparts to a client with respect to any work related to clearance of cargo or package. In this case, the appellant did not impart correct information to its client nor did it disclose its own name as the Customs Broker in the bill of entry. Therefore, appellant has clearly violated Regulation 10 (e). Violation of Regulation 10 (f) - HELD THAT:- Regulation 10 (f) requires the Customs Broker to not withhold information contained in any order, instruction or public notice relating to parents of cargo or package issued by Customs authorities, as the case may be from a client who is entitled to such information. There is nothing on record to show that the appellant had informed the importer about the prohibitions on the import of the goods as per the Plant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of Rs. 50,000/-. This order was passed in pursuance of the show cause notice [SCN] dated 24.06.2022 issued by the Commissioner, wherein it was alleged that the appellant had contravened Regulations 10(a), 10(b), 10(d), 10(e), 10(f) and 10(k) of the Customs Broker Licencing Regulations, 2018 [CBLR]. The Commissioner appointed an Inquiry officer in the matter and after considering his report and the submissions made by the appellant passed the impugned order holding that the appellant had violated the provisions of Regulations 10(a), 10(d), 10(e), 10(f), 10(k) and 10(n) of the CBLR. He held that the appellant had not violated Regulation 10(b). For these violations, the Commissioner revoked the licence of the appellant, forfeited its security deposit and imposed penalty of Rs. 50,000/-. 2. The facts which led to the issue of the show cause notice are that one, M/s JCS Botanicals, Greater Kailash, New Delhi [the importer] filed bill of entry dated 04.02.2022 at ICD, Jhattipur, Panipat to import goods declared as the following :- S. No. Item Description Quantity Value (Rs.) 1. DRIED ROOT CROCUS (CORCUS SATIVUS L) 10000.00 Kgs. 1149032.81 2. GULGAFIZ (GENTIANA OLIVIERI GRISEB) 2720 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... International Cargo Services versus CC, Ahmedabad [ 2022 (5) TMI 764 CESTAT AHMEDABAD] (iv) Customs Broker licence should not be revoked even if there are minor lapses or omissions. (v) The Commissioner had not considered the plea of the appellant regarding the effect of the action of revocation on his right to carry on trade or provision. (vi) Revocation of Customs Broker s licence is a harsh action not commensurate with the offence. (vii) The impugned order was passed based on order-in-original which was passed without issuing the show cause notice and without grant of personal hearing to the appellant or its Director. (viii) The statement of Shri Prakhar Gupta, a co-accused, is not reliable. (ix) Shri Prakhar Gupta was not made a party by the Commissioner in this case. (x) The statement by Shri Prakhar Gupta needs to be corroborated with independent documentary evidence (xi) The whole case is based on retracted statement, although the retraction was delayed. (xii) The importer in this case is in existence, presented himself for examination, cooperated with the investigation and paid all Government dues including redemption fine and penalty and re-exported the goods. Therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Archit Sharma, Proprietor of the importer clearly stated that he had sent all details and documents of the consignment by E-mail to [email protected] of the appellant on the directions of Shri Awadhendra Kumar, who is the Director of the appellant firm. Shri Awadhendra Kumar also said that he had collected original documents from the importer who filed the bill of entry for clearance who failed to submit the original documents. The appellant had violated Regulation 10(k). (v) Thus, the appellant had violated Regulations 10(a), 10(d), 10(e), 10(f) and 10(k). The impugned order was, therefore, fair and proper and also no interference is required and the appeal may be dismissed. 8. We have considered the submissions on both sides and perused the records. 9. We need to decide the following questions :- (a) Did the appellant violate Regulations 10(a), 10(d), 10(e), 10(f) and 10(k) of CBLR. (b) If so, is the revocation of licence, forfeiture of security deposit and penalty of Rs. 50,000/- proportionate to the violations. 10. The facts are not in dispute. Prohibited goods were imported by the importer. They were described correctly. Even if the importer was not aware of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal hearing to the appellant or its Director and yet penalty was imposed and is therefore the offence report is non-est. Therefore, the SCN and the impugned order must also be set aside. It is further submitted that Shri Prakhar Gupta was not made a party to these proceedings by the Commissioner. 17. We have considered these submissions. The short question to be answered is if the appellant had acted as the Customs Broker with respect to the bill of entry and instead of using its own licence used the licence of M/s Prakhar Gupta and filed the bill of entry. From the submission of the appellant in this appeal itself, it is evident that Shri Awadhendra Kumar, director of the appellant had filed the bill of entry using the Customs Broker licence of M/s Prakhar Gupta. This fact having been admitted, need not be proved. It is also a matter of record that all documents were sent by the importer to the appellant s E-mail ID and the importer had not contacted Shri Prakhar Gupta. Shri Prakhar Gupta also confirmed that he had allowed the appellant to use his licence to file bill of entry although he denied allowing them to use his licence in respect of this bill of entry. It needs to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oker and filed a bill of entry so as to facilitate clearance of prohibited goods. It is not a case of innocent violation or minor infraction. Its clear a case of facilitation of import of prohibited goods. To cover it up, the appellant used the identity of another Customs Broker illegally for the purpose. 20. It is also submitted that the appellant should not suffer and is not responsible for any action taken by its directors and employees. We disagree. A Customs Broker is always responsible for the action of its employees and Directors. Otherwise, there is hardly any case where the Customs Broker especially if it is a company directly comes to the Customs House and files bills of entry. Its employees do so. It is also not the case here that Shri Awadhendra Kumar and Shri Sanjay Kumar of the appellant firm were operating privately independent of the appellant firm. All documents were made E-mailed to the appellant s E-mail ID. Using these documents, the bill of entry was filed and Shri Sanjay Kumar an employee of the appellant attended during examination of the goods. We have no doubt that both of them acted as employees of the appellant. Therefore, the appellant cannot escape the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. There is nothing on record to show that the appellant had informed the importer about the prohibitions on the import of the goods as per the Plant Quarantine Laws. Therefore, we find that the allegation of violation of Regulation 10 (f) needs to sustain. 25. Regulation 10 (k) requires the Customs Broker to maintain up-to-date records, such as, bill of entry, shipping bill, trans-shipment application etc. All correspondence, other papers relating to his business as Customs Broker and accounts including financial transactions in an orderly and itemized manner. In this case, the importer stated that he had sent the documents/details of the consignment by E-mail to [email protected] of the appellant on the direction of its Director Shri Awadhendra Kumar and that Shri Awadhendra Yadav collected the original documents, but he failed to submit the original documents even when the customs authorities asked for them. Thus, we find that the allegation of violation of Regulation 10 (k) of CBLR needs to be sustained. 26. The last question to be answered is the proportionality of the punishment to the violations. We find that this is not a case of lapse of the appellant due to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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