Custom, Excise & Service Tax Tribunal
Universal Clearing &Amp; Forwarding ... vs Kolkata(Admn Airport) on 29 November, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Appeal No.C/75883/2018
(Arising out of Order-in-Original No.Kol/Cus/Airport/Admn/03/2018 dated
29.01.2018 passed by the Commissioner of Customs (Airport & Admin.)
Universal Clearing and Forwarding Agency
...APPELLANT(S)
VERSUS
Commissioner of Customs (Airport & Admin.), Kolkata
...RESPONDENT (S)
APPEARANCE Shri Arijit Chakraborty, Advocate for the Appellant Shri S.K.Naskar, AC(AR) for the Respondent.
CORAM:
HON'BLE SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Hon'ble SHRI V.Padmanabhan, Member (Technical) Date of Hearing : 16.11.2018 Date of Pronouncement: 29.11.2018 ORDER NO.FO/A/76987/2018 Per Bench :
The present appeal has been filed by the appellant against the Order-in-Original No.Kol/Cus/Airport/Admn/03/2018 dated 29.01.2018. In this Order the adjudicating authority in his capacity as the Licensing Authority for the Customs Broker, has ordered revocation of the licence held by the appellant as customs broker. Further, he has ordered forfeiture of the full amount of security deposit furnished by the customs broker.
The appellant is a customs broker licensed by the Commissioner of Customs, Kolkata. The Directorate of Revenue Intelligence investigated certain import consignments including the Bill of Entry No.6959360 dated 2 Appeal No.C/75883/2018 03.10.2016 filed by the appellant with his Customs Broker No. for the importer M/s. A.G.Enterprises. The Import Declaration with the check list, was signed by Shri Arup Mukherjee, Partner of the appellant firm. The investigation undertaken by the DRI revealed that in the consignment imported by M/s A.G.Enterprises, in addition to the declared items, undeclared tyres with the brand name DUNLOP of high value were also found. After completion of the investigation by the DRI, show cause notice dated 04.04.2017 for the alleged customs offence was issued to the importer as well as other persons. The Licensing Authority took the view that the appellant had contravened various provisions of the Customs Broker Licensing Regulation, 2013 in filing the bill of entry in the above case. The Customs Broker Licence of the appellant was initially suspended but the same was revoked by the Licensing Authority's Order dated 11.07.2017.
Subsequently, show cause notice dated 18.08.2017 was served upon the appellant proposing to revoke the Customs Broker Licence in terms of CBLR, 2013. The enquiry into the alleged offence against the appellant was completed and the ld. Commissioner, by issue of the impugned order revoked the licence and ordered forfeiture of the full amount of security deposit. This Order is under challenge in the present proceedings.
2. The appellant is represented by Shri Arijit Chakraborty, Advocate and Respondent is represented by Shri S.K.Naskar, AC(AR).
3. Ld. Advocate submitted that the impugned order is not justified for the following reasons:
i) The main charge against the appellant is contravention of Regulation 10, which prohibits the Customs Broker from selling otherwise transferring the licence. In respect of the other alleged 3 Appeal No.C/75883/2018 contravention of Regulation 11, he refuted allegation and submitted that the DRI investigation has revealed that the bill of entry on behalf of the importer was filed by One Shri Barun Chanak by obtaining blank Import Declaration Form signed by Shri Arup Mukherjee, Partner. In his statement before the DRI, Shri Barun Chanak has stated that Shri Anil Jha gave him one blank Import Declaration Form signed by Shri Arup Mukherjee and two stamped letter heads of the appellant firm for Rs.1000. He further referred to the DRI Show cause notice, in which in paragraph 38.3, it has been recorded that it was Shri Barun Chanak who filed the bill of entry after obtaining the blank declaration form.
ii) Ld. Advocate submitted that Shri A.K.Jha used to be Manager of the appellant firm, but w.e.f. 15.12.2015 he had left the job of the appellant firm and to this extent due intimation was sent to the Commissioner (Cus) (CHA Section) through the appellant's letter, which was received by the Customs Authorities on 15.12.2015. Since it has been subsequently informed to the CHA Section that Shri A.K.Jha no longer continues in their employment, the appellant cannot be held liable for any fraud in the import consignment for which bill of entry has been filed.
iii) Ld. Advocate further referred to the impugned order in which the adjudicating authority observed that the appellant requested for the cross examination of Shri A.K.Jha to establish how the signed blank copy of the declaration form Shri Barun Chanak found from Shri A.K.Jha. However, the adjudicating authority declined to give permission for such cross examination. Under the circumstances he submitted that the appellant cannot be held to have contravened any 4 Appeal No.C/75883/2018 of the Customs Broker Licensing Regulations. He also emphasized the fact that in the show cause notice issued by the DRI for the alleged customs offence, the appellant has not been made noticee and hence there is no proposal even to impose penalty on the appellant for the alleged customs offence.
iv) Finally he submitted that the impugned order may be set aside.
4. Ld. DR justified the Order passed by the adjudicating authority. He submitted that Shri Arup Mukherjee, the Partner of the appellant firm has admitted in his statements before the DRI on 07.10.2016 and 14.10.2016 to the fact and the check list attached to the bill of entry which consists of eight pages also bears his signature. He further emphasized the fact that the above fact clearly indicates that Shri Arup Mukherjee, Partner has handed over signed blank declaration form, which amounts to sub-letting of the Customs Broker Licence. He further submitted that since no FIR has been filed by Shri Arup Mukherjee against Shri A.K.Jha or Shri Barun Chanak or any other person, nor informed the CB Section of the Customs House about the loss or theft of the signed blank copy of the Import Declaration Form, it is to be presumed that Shri Arup Mukherjee was very much aware of the filing of bill of entry.
5. Heard both sides and perused the appeal records.
6. The bill of entry in question was filed on behalf of the M/s. A.G.Enterprises in the name of the appellant. The Import Declaration Form as well as annexures bears the signature of Shri Arup Mukherjee. The investigation by DRI revealed that in the consignment, goods were found to be misdeclared and in addition to declared items, high valued tyres with brand name of DUNLOP were also found. Accordingly, offence case was 5 Appeal No.C/75883/2018 booked against the importer and show cause notice dated 12.07.2017 as been issued to the importer and others. But it has been pointed out that there is no proposal for imposition of penalty against the appellant.
7. The enquiry conducted under the CBLR, 2013 found the appellant to have contravened various Regulations under CBLR, 2013. The appellant was found to contravened Regulation 10 i.e. sub-letting the Customs Broker Licence. They have also been alleged to have violated several sub-regulations of Regulation 11, which are a consequence of alleged violation of Regulation 10. The Enquiry Authority came to the said conclusion mainly on the basis of the fact that the annexures to the bill of entry (which includes the import declaration form) bears the signature of Shri Arup Mukherjee, Partner of the appellant firm. The DRI investigation also brought out the fact that such declarations were signed in the blank declaration form by Shri Arup Mukherjee, but which has found its way into the hands of Shri Barun Chanak who used such forms for filing bill of entry covering the goods in question. Mr. Barun Chanak has stated before the DRI that he has procured such blank forms through Shri A.K.Jha who was the Manager of the appellant firm. Such findings as well as the charge has been strongly refuted by the appellant with the submission that during the period when the bill of entry was filed i.e. on 03.10.2016, Shri A.K.Jha was no more in the employment of the appellant. They have cited and submitted a copy of the letter filed by the appellant to the CHA Section of the Customs House (which has also been duly acknowledged by the Customs) to the effect that Shri A.K.Jha had left the service of the company and the 'G' Card issued to him may be withdrawn.
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Appeal No.C/75883/2018
8. After considering the facts and circumstances of the case, it is seen that the involvement of the appellant or its partner in the alleged customs offence detected and investigated by the DRI is not established. The bill of entry for the import was filed in the name of the appellant using his Customs Broker Licence number. In the statements recorded from Shri Arup Mukherjee, he has submitted that the import declaration form bears his signature, but he could not explain how the blank form signed by him found its way into the hands of Shri Barun Chanak. But what stands established is that the partner of the appellant has signed and handed over the import declaration form without filling up the details of any particular import. This has given room for misuse of such form subsequently.
9. In the facts and circumstances we are of the view that the contravention of the Regulation 10 of the CBLR, 2013 stands established against them. But taking into consideration the gravity of the violation, we are of the view that the ends of justice would be met by imposition of penalty of Rs.25,000/- on the appellant. The revocation of the Customs Broker Licence is not justified and hence is set aside.
9. In the result, the appeal is partly allowed.
(Pronounced in the Open Court on 29.11.2018)
S/d. S/d.
(P. K. CHOUDHARY) (V.Padmanabhan)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
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