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TMI Blog2024 (12) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... est was denied by the competent authority vide letter dated 05.04.2018. The appellant has not challenged the said denial of the cross examination much before the adjudication was done before any authority. Hence it would not be justified to reopen the issue at this stage. From the evidences as adduced in the orders of lower authority it is evident that appellant has in manner abetted in clearance of undeclared/ mis-declared goods for export. For that penalty is imposable under Section 114 (i) of the Customs Act, 1962 without establishing an element of mens-rea. However taking note of the fact that commissioner (Appeal) has vide two order referred by the appellant, dropped the proceedings against the two departmental officers, holding their acts of omission and commission as act of innocent negligence, the penalty imposed on the appellant as excessive and reduce the same to Rs 10,00,000/-. There are no reason for invocation of Section 114AA, for the reason that the appellant had filed the shipping bills as per the documents provided to him be the exporters in the case. He himself was not responsible for forging any documents for the clearance of the said goods for export. Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Broker Licencing Rules, 2013, he had not acted prudently while arranging Customs clearance of the export consignment examined vide Shipping Bill 7549865 dated 24.07.2017 and shipped in Container No. SHKU 6319529. He had knowledge that the consignment contained mis-declared/ un-declared goods i.e counterfeit Vimal Gutkha in plastic pouches but to earn easy and quick money, he failed to inform this fact to the Customs as per Rule 11 of the Customs Broker Licencing Rules, 2013 due to greed for ease money. 2.4 Therefore, appellant knowingly indulged in facilitating the export of prohibited goods i.e. Gutka, in plastic pouches by providing logistic support viz transport, preparation of export documents, custom clearance etc. in contravention of provision of Section 113 of the Customs Act, 1962 as well as in contravention of Plastic Waste(Management Handling) Rules, 2011. He had provided container for stuffing of the prohibited goods at unspecified address even though the exporter in the instant case was not having any valid permission for self /factory sealing. Further, he failed to verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities below have gravely erred by not taking into consideration that a Custom House Agent cannot be penalized for misdemeanor of the importer or exporter unless he is aware of the same. D.S.Cargo Services [2009 (247) E.L.T. 769]; Prime Forwarders [2008 (222) E.L.T 137]; Moriks Shipping and Trading Pvt. Ltd [2008 (227) E.L.T 577], World Cargo Movers [2002 (139) E.L.T 408]. in the present case Shri Daya Shankar Superintendent and Shri Manoj Srivastava, Inspector who were co appellants in the subject Order-in-Original and have attended the impugned export and granted Let Export Orders have since been absolved from penalty by the learned Commissioner (Appeals) vide Order-in-Appeal No. NOI-CUSTM-000-APP-142-19-20 and NOI-CUSTM-000-APP-142-19-20 both dated 08.05.2019, the penalty on the officers who examined the goods have been set aside on the ground that they were not having culpable mind but were negligent and careless in discharging their duty. Appellant was also appointed as a CHA by the Customs authority and in the present case there was no malafide intention or contumacious conduct on his part and he was not aware about the presence of Gutka instead of pan masala in plastic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ems i.e. gutkha and other house hold items covered under Shipping Bill no.7549865 dated 24.07.2017 were provided by Sh. Mehmood and Sh. Shubham and invoice and packing list was prepared in his office by one of his employees. e) He wrongly stated in his statement dt. 06-08-2017 that he was not aware of the consignment containing gutkha. He knew that there was gutkha in the consignment being exported by the firm. He purposely filed free shipping bill for export of these goods on the request of Sh. Mehmood f) He was aware of the Instruction No.528/ 69/2011-STO(TV) dated 30.08.2011 issued by Central Board of Excise and Customs according to which export of pan masala/gutkha packed in plastic sachet /plastic material in any form would be in contravention of the provisions of Plastic Waste (Management Handling Rules, 2011). g) CRN slip no, F170727006 was managed by him on the basis of fabricated documents. h) No G-card or H-Card was employed in his 'firm in violations of Customs Broker Licensing Regulation, 2013. He was the holder of digital signature and Shipping Bills were filed by him. He used to get customs clearance of export cargo from ICD Loni through an unauthorized person emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case was not having any valid permission for self factory sealing. Further, he failed to verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at he declared address by using reliable, independent, authentic documents, data or information. Thus, Sh. Sanjay Prabhakar, Proprietor of Customs Broker Firm M/s Sanjay Prabhakar had abetted smuggling of prohibited goods. 5.3 As regards the pleas taken by the appellant that no reliance can be placed on the alleged statement of the Noticee which was forcibly extracted from him under duress, threat, coercion and after actual physical torture during prolong illegal custody. He has lodged a complaint before the Court. I observe that the plea put forth by the notice is afterthought to save him from punishment penalty provided under the Act ibid and other allied Acts for such offences of smuggling. AS regards the request to provide opportunity to cross-examine the seizing officers, the punch witnesses, the officers who have recorded the statements and the co-noticees to prove the innocence was examined and the same was four:d frivolous and hence rejected by the competent au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard of Excise and Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service; (d) advise his client to comply with the provisions of the Act and in case of noncompliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (e) 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; (f) not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Commissioner of Customs, from a client who is entitled to such information. (g) not attempt to influence the conduct of any official of-the Customs Station in any matter pending before such official or his subordinates' by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing of value; (h) verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disguise of pan masala. The plea put forth by the notice is not correct as he himself in his statement dated 15.12.2017 admitted that he had knowledge that the consignment as above contained mis-declared/ un-declared goods i.e. counterfeit Vimal Gutkha in plastic pouches but to earn easy and quick money, he failed to inform this fact to the Customs Assistant/ Deputy Commissioner as mandated in the Rule 11 of the Customs Broker Licencing Rules, 2013 due to greed for ease money. 34.4 Sh. Sanjay Prabhakar in his defence reply dated 28.03.2018 stated that the allegations hurled on him by Mehmood @ Guddu are wrong and he has wrongly stated that Sh. Sanjay Prabhakar deliberately declared Vimal Gutkha' as Pan Masala only to save himself or the actual culprits and that he was paid alleged amount of Rs. 1,50,000/- which was never paid to him for the said consignment. And that on instruction of Sh Salim Ismail Dola, Sh Sanjay Prabhakar booked and sent the containers to godown is completely wrong as Sh Salim Ismail Dola in his statement stated that he never met any Sanjay Prabhakar. 34.5 I observe that Sh. Sanjay Prabhakar is relying upon the statements of Sh. Salim Ismail Dola whereas de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g any valid permission for self /factory sealing. He has failed to 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. Further, he has failed to verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent authentic documents, data or information. In view of the above, I find that Shri Sanjay Prabhakar, Proprietor of Customs Broker Firm M/s Sanjay Prabhakar has failed to fulfill the obligations of Customs Broker as provided in the Customs Broker Licensing Regulations, 2013 as discussed herein above. He has knowingly indulged in facilitating the export of prohibited goods i.e. Gutka, in plastic pouches by providing logistic support viz transport, preparation of export documents, custom clearance etc. in contravention of provision of Section 113 of the Customs Act, 1962 as well as in contravention of Plastic Waste(Management Handling) Rules 2011. He has provided container for stuffing of the prohibited goods at unspecified address even though the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty for non compliance with the said regulations as has been held in case Fast Cargo Movers [2018 (362) E.L.T. 184 (Tri. - Del.)] observing a s follows: 6. Section 114 of the Customs Act, 1962 mandates imposition of penalty, in cases, when any person, who in relation to any goods, does or omits to do any act, which renders the goods liable for confiscation. From the above observations of the adjudicating authority, we find that the charges leveled against the appellants are basically confined to the fact that as the custodian, clearing forwarding agents, shipping line agents and customs house agents in context with the export of alleged goods, the appellants have grossly neglected their duties and responsibilities cast on them under the Regulations, namely, Handling of Cargo in Customs Area Regulations, 2009 and Customs House Agents Licensing Regulations, 2004. The said regulations provide the procedure for suspension or revocation of license and for imposition of penalty for contravention of the laid down provisions contained therein. In exercise of the powers conferred by the Customs Act, 1962, the CBEC has formulated the said Regulations. When the statute specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in original, the said request was denied by the competent authority vide letter dated 05.04.2018. The appellant has not challenged the said denial of the cross examination much before the adjudication was done before any authority. Hence it would not be justified to reopen the issue at this stage. In case of Naresh J Sukhwani [1996 (83) E.L.T. 258 (S.C.)] Hon ble Supreme Court held as follow: 3. The Joint Secretary to the Government, the revisional authority, has held that the evidence and the statement given by Mr. Dudani incriminates the petitioner. This was established with reference to the photographs and other intrinsic material. On that basis, he concluded that Mr. Dudani incriminated himself and the appellant in passing off foreign currency out of India, i.e., to Hong Kong. It was accordingly held that the contravention was established. It is contended that the statement of co-accused could be used only to corroborate other evidence as one of the circumstances under Section 30 of the Evidence Act. But it cannot be used as substantive evidence without corroboration from other independent evidence. Except the statement of Dudani, there is no other independent evidence. Mr. Dud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab - AIR 1952 SC 214, Para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two-Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner . ..... 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