Custom, Excise & Service Tax Tribunal
Eskay Logistics vs Tuticorin on 19 June, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT No. III
Customs Appeal No. 40625 of 2024
(Arising out of Order-in-Original No.10/2021 dated 08.10.2021 passed
by Commissioner of Customs, Custom House, New Harbour Estate,
Tuticorin 628 004)
M/s.Eskay Logistics .... Appellant
155/3, 1st Floor, Victoria Street,
Tuticorin 628 001.
VERSUS
The Commissioner of Customs, ... Respondent
Custom House, New Harbour Estate, Tuticorin 628 004.
APPEARANCE :
Shri A.K. Jayaraj, Advocate for the Appellant Shri N. Satyanarayana, Authorized Representative for the Respondent CORAM :
HON'BLE MR. P. DINESHA, MEMBER (JUDICIAL) HON'BLE MR. M. AJIT KUMAR, MEMBER (TECHNICAL) FINAL ORDER No.40625/2025 DATE OF HEARING : 11.02.2025 DATE OF DECISION: 19.06.2025 2 Per: Shri P. Dinesha This appeal is filed by the appellant-Customs Broker against Order-in-Original No.10/2021 dated 08.10.2021 passed by Commissioner of Customs, Tuticorin and the facts as recorded in the impugned order are as under :
2.1 M/s. Shah Aroma, through their Customs Broker M/s.Eskay Logistics (appellant herein), filed Bill of Entry No.5257470 dated 11.10.2019 before Customs House, Gujarat Pipavav wherein they sought clearance for Home Consumption of Vietnamese origin 14722 Kgs. of 8 inch Black Raw Agarbatti for an assessable value of Rs.6,74,492/-
and 12920 Kgs of 9 inch Black Raw Agarbatti for an assessable value of Rs.5,73,289/- covered under Bill of Lading No.HPHPIV 1908001 dated 29.08.2019, by classifying the same under Customs Tariff Heading 33074100 of the First Schedule to the Customs Tariff Act, 1975. 2.2 Whereas it appeared that prior to 31st August, 2019, as per ITC (HS) 2017-Schedule-I (Import Policy) the goods classifiable under Chapter Heading No.33074100 were freely importable. However, vide Notification No.15/2015-2020 dated 31.08.2019 the policy provisions were revised from "Free" to "Restricted". Therefore, w.e.f. 31.08.2019 for 3 importation of goods falling under Chapter Heading 33074100 the valid authorization from the licensing authority was required.
2.3 During the examination of the Invoices and Bill of Lading, it appeared that :
(i) In the Original copy of Invoice No.SA-14-20149 dated 29.08.2019 of M/s.Bamboo Viet Import - Export and Trading Production Joint Stock Company, Vietnam the Bill of lading date specified is 29.08.2019,
(ii) whereas in Photostat copy of Invoice No.SA-14-20149 dated 29.08.2019 of M/s.Bamboo Viet Import - Export and Trading Production Joint Stock Company, Vietnam, the Bill of Lading date is 06.09.2019.
(iii) In the original copy of Certificate of Origin dated 06.09.2019, in Form A-1 bearing Reference No.VN-In 19/01/22452, the date of departure of vessel is 29.08.2019,
(iv) whereas in the Photostat copy of Certificate of Origin dated 06.09.2019, in Form A-1, bearing Reference No.VN-In 19/01/22452, the date of departure of vessel is 06.09.2019.
(v) in the Original copy of Bill of Lading No.HPHPIV1908001 dated 29.08.2019 issued by M/s.Amasis Shipping Company 4 Limited it is being stated that the goods were loaded on board on 29.08.2019,
(vi) whereas in the Photostat copy of Bill of Lading No.HPHPIV1908001 dated 29.08.2019 issued by M/s.Amasis Shipping Company Limited it is being stated that the goods were loaded on board on 06.09.2019.
2.4 The said importer could not produce the required authorization for importation of the goods and also there were two sets of documents bearing different dates, as mentioned in preceding para. Therefore, it appeared that goods imported vide said Bill of Entry were in violation of provisions of the Customs Act, 1962. Therefore, the entire lot of the goods having assessable value of R.12,47,782/- was seized dated 27.10.2019 under panchnama dated 27.10.2019. A copy of seized memo was shown to Shri Ankur Padiya, "H" Card Holder and authorized representative of M/s.Eskay Logistics. 2.5 Shri Ankur further clarified that they have got the copy of House Bill of Lading No.HPHPIV1908001 issued by M/s.Amasis Shipping Company Limited wherein the date is mentioned as 29.08.2019; that the bill of lading date mentioned in IGM is also 29.08.2019 that on that basis they 5 have filed Bill of Entry; that consequent to filing of Bill of Entry on 11.10.2019 they received second copy of House Bill of Lading wherein the date of shipment was mentioned as 06.09.2019; that they cannot amend the Bill of Entry once Import General Manifest is filed wherein the Bill of Lading date is mentioned as 29.08.2019; that Shipping line or their agents are responsible for amendment of Import General Manifest.
2.6 Shri Ankur Padiya "H" Card Holder and authorized representative of M/s.Eskay Logisics, Customs Broker holding Registration No: ABDPN1577CH003, in his statement dated 11.02.2020 has clearly admitted that in the invoice, received by them at the time of filing Bill of Entry, the date of Bill of Lading was mentioned as 06.09.2019. Further, it has also been admitted by Shri Ankkur that they have noticed that the departure date mentioned in the Certificate of Origin tallied with Bill of lading provided, but not with the invoice. Despite this the C.B. has tried to show to the Customs that the date of shipment was 29.08.2019 in an attempt to aid the importer to bye-pass the policy restrictions. Thus, it appears that the C.B. failed to discharge the obligations cast upon him under Regulation 10(d), (e) &
(n) of CBLR 2018.
62.7 Upon being asked Shri Ankur further stated that they have been provided copies of invoice, packing list, country of origin certificate and House Bill of Lading by email on 11.10.2019; that on the same day they prepared the check list and filed Bill of Entry. Shri Ankur further clarified that they have got the copy of House Bill of Lading No.HPHPIV1908001 issued by M/s.Amasis Shipping Company Limited wherein the date is mentioned as 29.08.2019; that the Bill of Lading date mentioned in IGM is also 29.08.2019 that on that basis they have filed Bill of Entry; that consequent to filing of Bill of Entry on 11.10.2019 they received second copy of House Bill of Lading wherein the date of shipment was mentioned as 06.09.2019; that they cannot amend the Bill of Entry once Import General Manifest is filed wherein the Bill of Lading date is mentioned as 29.08.2019; that Shipping line or their agents are responsible for amendment of Import General Manifest.
2.8 An Inquiry Officer in this case was appointed in terms of Regulation 17 of CBLR, 2018. The Inquiry Officer submitted his inquiry report vide letter dated 17.08.2021. The Inquiry Officer concluded that the articles of charges for violation of Regulation 10 (d), 10 (e) and 10 (n) of CBLR, 7 2018 levelled against the Customs Broker M/s.Eskay Logistics vide SCN No.19/2021 dated 07.06.2021 are not proved.
3. After grant of personal hearing and considering the defence submissions/representation, the Ld. Adjudicating Authority passed the impugned Order-in-Original No.10/2021 dated 08.10.2021. The Ld. Adjudicating Authority has held that the Inquiry Officer has left out some key points of above issue under which charges against the Customs Broker M/s.Eskay Logistics have been levelled in the above cited SCN and therefore he disapproved the findings of Inquiry Officer; he has held that it is the primary responsibility of Customs Broker to ensure that only correct documents are submitted after due verification. However, in the instant case, the customs broker in connivance with the importer, tried to produce two sets of documents with the ulterior motive of getting restricted goods cleared by showing wrong dates of Bill of Lading and dates of departure and on country of origin certificate. Further, the customs broker has to verify the documents by showing reasonable suspicion in verification of documents and should exercise due diligence.
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4. Ld. Adjudicating Authority held that it is abundantly clear that the said Customs Broker has failed to notice that the departure date mentioned in the certificate of origin despite being in agreement with Bill of Lading didn't tally with invoice and has further found that despite the facts that the contract and invoices were clearly mentioning that the sales were on FOB basis just on the instructions of their clients, without cross checking the documents etc., appellant-customs broker filed Bill of Entry wherein it was declared that the term of sales were CIF.
5. The Ld. Adjudicating Authority found that while importer was resorting to shipping date and misdeclaring the terms of sales, the Customs Broker did not discharge obligations cast upon them. The Regulation 10 (d) of the Customs Brokers Licensing Regulations, 2018 clearly stipulates that they shall advise their clients to comply with the provisions of the Customs Act, 1962, other allied Acts and the rules and regulations and in case of non-compliance they shall inform the department and held that the appellant has not done so.
6. Consequently, the Ld. Commissioner has revoked the Customs Broker License issued to the Appellant under 9 Regulation 14 of CBLR, 2018 read with Regulation 17 of CBLR, 2018. He also forfeited the whole security deposit furnished by the appellant-CB for issuance of CB License and imposed a penalty of Rs.50,000/- in terms of Regulation 18 of CBLR, 2018. Aggrieved by the order of the Ld. Commissioner, the appellant has filed the present appeal before us.
7. We have heard Shri A.K. Jayaraj, Ld. Advocate for the Appellant and Shri N. Satyanarayana, Ld. Assistant Commissioner for the Respondent.
8. After hearing both sides, the only issue which is to be decided by us is, "whether the revocation of Customs Broker License apart from forfeiture of the entire Security Deposit and imposition of penalty under Regulation 18 ibid by the Commissioner is justified ?"
9. The appellant has pleaded ignorance / innocence insofar as filing of dual Bill of Entry for a single consignment is concerned, to be as issued / supplied by the importer and in this regard he has relied on a decision of Hon'ble Delhi High Court in the case of Kunal Travels (Cargo) Vs Commissioner of Customs (I&G) IGI Airport, New Delhi reported in 2017 (354) ELT 447 (Del.) and 10 Commissioner Vs Shiva Khurana reported in 2019 (367) ELT 350 (Del.) wherein the Hon'ble Courts have held that the exercising of due diligence by a CHA would not get into the background check of exporter/importer and that furnishing of wrong or incorrect information could not be attributed to the CHA, if such documents are filed innocently.
10. Upon hearing rival contentions and after perusing the documents placed on record, we find that - A detailed SCN was issued and reference is made to statements recorded under Section 108 of the Customs Act, 1962, but no whisper about this is made in the Inquiry Officer's Report.
The Inquiry Officer's Report is very bald in the conclusion part.
The statement of one Ankur Padia is not retracted. The contract and invoices mentioned for the sales were on FOB basis while the Bill of Entry was filed by declaring that the terms of sales were CIF. About intimation of the second set of Bill of Entry by Ankur Padia to the Revenue, no evidence is available on record.
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11. Though the CHA/Customs Broker acted in good faith still, there are other grey areas like the above, which require clarifications, but however the same are not explained by the CHA/CB. This does not ipso facto mean that the Revenue has proved violations of Regulations of CBLR, 2018 to the extent of cancelling the very license issued to the Customs Broker apart from forfeiture of the entire Security Deposit and imposing penalty. Considering the above, and the fact that the Customs Broker could have been more diligent in discharging his obligations cast not only towards his clients but also to justify holding "H" card, we deem it appropriate to modify the impugned order by setting aside the revocation of license and forfeiture of entire Security Deposit; however, reducing the penalty to Rs.5,000/- (Rupees Five thousand only) as a deterrent.
The appeal is disposed of on the above terms. (Order pronounced in open court on 19.06.2025) (M. AJIT KUMAR) (P. DINESHA) Member (Technical) Member (Judicial) gs