Custom, Excise & Service Tax Tribunal
Rahul Bhardwaj vs Commissioner, Customs (Airport &Amp ... on 20 January, 2022
1
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Customs Miscellaneous Application No. 50063 of 2021-SM
(on behalf of the appellant) with
Customs Appeal No. 50979 of 2020
(Arising out of order-in-original No. 18/MK/POLICY/2020 dated 06.02.2020 passed by the
Commissioner of Customs (Airport & General), New Custom House, Near IGI Airport, New Delhi).
Rahul Bhardwaj Appellant
rd
D-211, 3 Floor, Prashant Vihar
Sector-14, Rohini
New Delhi-110085.
VERSUS
Commissioner of Customs Respondent
(Airport & General) New Custom House, Near IGI Airport New Delhi-110037.
APPEARANCE:
Shri Piyush Kumar, Advocate for the appellant Shri Pradeep Gupta, Authorised Representative for the respondent CORAM:
HON'BLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) FINAL ORDER NO. 50046/2022 DATE OF HEARING: 30.07.2021 DATE OF DECISION: 20.01. 2022 ANIL CHOUDHARY:
This appeal arises from the Order-in-original dated 06.02.2020 whereby the learned Commissioner have ordered forfeiture of the security deposit of Rs.75,000/-, of the appellant Custom Broker and further imposed penalty of Rs. 50,000/- under Regulation 18 of the CBLR, 2018. Learned Commissioner have refrained from revoking the CB License of the appellant, which was valid upto 21.10.2027.
2. Brief facts of the case are that one Sh. Andre Waly Sedar Sarr, First Secretary, Embassy of the Republic of Senegal, Vasant Vihar, New Delhi had filed Bill of Entry No. 8005732 dated 11.09.2018 through the appellant Custom 2 Broker - Sh. Rahul Bhardwaj, F Card holder (Card No. 199/06) at ICD, Garhi Harsaru to seek clearance of goods declared as Food Stuff (Chocolate etc.) Cigarettes and Cosmetics supplied by M/s Viniprod International Trading LLC, Dubai. The importer has claimed the benefit of Notification No. 03/57-Cus. dated 08.01.1957 for exemption of duty on the said imported goods. It is also mentioned - Exemption Certificate No. EC/03/AW/08/2018 dated 16.08.2018, wherein Ministry of External Affairs (MEA) Endorsement No. 1158 dated 23.08.2018. During the assessment of Bill of Entry, following targeter‟s/ intervener‟s instructions were noticed as under:-
"Container may be examined on 100% basis as it is likely to contain contraband. In the event of any seizure RMCC may be informed."
3. Accordingly, a letter dated 13.09.2018 was sent to the Deputy Chief of Protocol, MEA, New Delhi conveying the requirement of 100% examination of the goods in presence of Representative of the Embassy and MEA, through post and e-mail.
4. In this regard, the import docket in respect of the subject Bill of Entry was asked for from Customs Broker - Rahul Bhardwaj and the docket found to contain following documents:-
(i) An invoice No. 6062 dated 14.08.2018 bearing stamp of Senegal Embassy and External Affairs Ministry, issued by M/s Viniprod International Trading LLC, Dubai in the name of Mr. Andre Waly Sedar Sarr, First Secretary, Embassy of Republic of Senegal. The invoice contained various food stuff items, cigarettes and cosmetics.
(ii) Copy of BL No. 03700205 /0007084 /19 dated 14.08.2018 bearing stamp of Senegal Embassy and External Affairs Ministry, issued by M/s Caravel Lines Pvt. Ltd., The said Bill of Lading mentioned only 1530 ctn.
of cosmetics and 797 ctn. of food stuff. There was no mention of cigarettes in the Bill of Lading.
(iii) Original Customs Duty Exemption Certificate bearing Sr. No. 03/AW/08/2018 dated 16.08.2018 duly attested by Protocol Officer (Special), MEA vide Endorsement No. 1158 dated 23.08.2018 valid till 19.04.2019. The Exemption Certificate also mentioned only food supplement/ Cosmetics in the description column alongwith the Invoice No. and date. There was no mention of cigarettes in the exemption certificate.
3(iv) Self-declaration by the Embassy of Senegal signed and stamped with the stamp of Embassy by Mr. Andre Waly Sedar Sarr, First Secretary, Embassy of Senegal in India and duly attested by MEA that the goods being imported do not contain any prohibited / restricted items and strictly for official/ personal use.
(v) Seneral Embassy‟s letter dated 16.08.2018 to M/s National Food and Beverages, Okhla, New Delhi & Nangloi, Delhi regarding warehousing of the present consignment in their warehouse.
No separate packing list was found in the docket. Scrutiny of the documents revealed the following-
i) The invoice mentioned 2327 packages.
ii) The Bill of Lading mentioned 1530 Ctns. Of Cosmetics and 797
Ctns. Food stuff, (Total 2327 packages). There was no mention of cigarettes in the B/L.
iii) The Exemption Certificate mentioned 2327 Boxes as per packing list attached of food supplements /Cosmetics. There was also no mention of cigarettes in the description column of Exemption Certificate.
iv) The Bill of Entry mentioned 03 items as under:-
Sr. Description of Goods Quantity No. of
No. packages
1 Diplomatic goods Chocolates food 1 lot 1480
stuff etc.
2 Diplomatic goods Cigarettes 1 lot 50
3 Diplomatic goods Cosmetics 1 lot 1480
Total Packages (as per Bill of Entry) 3010 Pkgs.
Thus, a mismatch of description of goods & Number of Packages in various documents such as invoice, B/L, Exemption Certificate & Bill of Entry has been observed in respect of subject impugned goods.
5. A letter dated 13.09.2018, was received from the Embassy of the Republic of Senegal stating that the inspection could be conducted only in the presence of the diplomatic agent or their authorised representative citing the immunities under "the Diplomatic Relations (Vienna Convention) Act, 1972. They had also mentioned to follow the process as prescribed under Customs Circular No. 13/2007 dated 02.03.2007. However, the Customs Circular No. 13/2007 dated 02.03.2007 is about import of livestock and livestock products. The 4 scanned copy of the letter dated 13.09.2018 was e-mailed to MEA on 13.09.2018.
6. In this regard, following communications were made with the Ministry of External Affairs to clarify the issue:
(i) An e-mail dated 14.09.2018 was received from Sh. Mahesh Chand Giri, Protocol Officer (Special), MEA confirming that the Exemption Certificate dated was attested for food stuff as per quota allotted by the Ministry to the Embassy and not for Cigarettes. A scanned copy of Invoice was received in the Protocol Special Section, MEA with respect to Exemption Certificate from the Embassy of Senegal was forwarded with the e-mail. It was also requested in the e-mail to send the copy of the invoice submitted to the Customs. The contents of the Invoice copy forwarded by the MEA through e-mail was the same as were the contents of the invoice submitted in the import docket by the Customs Broker for clearance of the goods.
(ii) Another e-mail dated 14.09.2018 was received from Sh. Ashish Gupta, DCP(P), MEA with a request to share the copies of the documents particular the packing list submitted by the Customs Broker. It was also conveyed to keep the further action on hold as the issue needed further examination at Ministry‟s end.
(iii) An e-mail dated 19.09.2018 was forwarded to the MEA informing them that goods belonging to Embassy of Senegal were lying at this port for a longer period and in this case the custodian and shipping line may ask for detention and demurrage charges. Hence, they were asked to advise an expeditious course of action.
(iv) Afterwards, an e-mail dated 20.09.2018 was received from MEA wherein they informed that the examination of the container of goods imported by the Embassy of Senegal was to be done on 24.09.2018. Further vide their e-mail dated 24.09.2018, they informed that Mr. Ravinder had been deputed as representative of protocol division, MEA to observe the inspection of the container belonging to the Embassy of Senegal
7. Accordingly on 24.09.2018, pursuant to approval of the Commissioner, ICD PPG & other ICDs, Delhi, the container No. WHLU5379840 wherein the impugned goods imported vide Bill of Entry No. 8005732 dated 11.09.2018 was taken up for 100% examination in presence of Mr. Papa Assane Mbengue, Counsellor, Embassy of Senegal in India. Mr. Andre Waly Sedar Sarr, First Secretary, Embassy of Senegal in India, Mr. Ravinder, JSA (I.D. Card No. 150590000009), Representative deputed by Ministry of External Affairs, Govt. of India, Mr. Bhagwat Dayal, G-Card holder of Custom Broker M/s Rahul Bhardwaj (Card No. 199/06) and Mr. Manish Jain, Sr. Manager (Operations), Representative of the custodian M/s Gateway Rail Freight Ltd., 7.1 Thereafter, the said container was opened for 100% examination of the goods in the presence of above mentioned persons and as per examination report, it was observed that-
(a) 14,40,000 sticks of Cigarettes of Gudang Garam brand were found as against the declared quantity of 60 x 10 x 50. The cigarettes were not covered in the Duty Exemption Certificate issued by the MEA.
5(b) The item No. 1 of Bill of Entry was declared as Chocolates, food stuff etc. whereas the goods found on examination were food supplements containing whey protein and vitamins.
7.2 Thus the examination of the goods covered under Bill of Entry No. 8005732 dated 11.09.2018 revealed that the goods were mis-declared to the extent that the description of the goods i.e. food supplements were declared as chocolate & food stuff and quantity of cigarettes were also declared well below then what was actually found. Further, it also appeared that the facilities of the Notification No. 03/57 dated 08.01.1957 read with Foreign Privileged Persons (Regulation of Customs Privileges) Rules, 1957, regarding exemption from duty and examination of goods imported by Embassy for personal use/ consumption were attempted to be claimed by mis-declaring the facts.
8. Since the cigarettes of Gudang Garam brand and whey protein and other food supplements were found mis-declared in terms of description as well as quantity and this contravention involved Sh. Andre Waly Sedar Sarr, who enjoys Diplomatic Immunity, therefore, the matter was conveyed to the Commissioner (Customs), CBIC, North Block vide letter C. No. VIII(B)40/ICD-GH/BE No. 885732/632/ 18-19/190-191 dated 09.11.2018 with a request to take up the matter with MEA and for issuance of suitable instructions in this regard for taking further course of action as the seizure and disposal of these goods.
9. Subsequently, the Board letter dated 30.11.2018 issued vide F. No. 458/145/2018-Cus.V directed "appropriate penal action as per extant provisions may be initiated in respect of the subject goods."
10. Accordingly, a letter C. No. VIII(B)40/ACD-GH/BE No. 885732/ 632/18-19 dated 03.12.2018 was written to the Deputy Chief of Protocol (Privileges), Ministry of External Affairs to co-ordinate with the Embassy of Senegal to attend the seizure proceedings and drawl of samples of item No. 1 for NOC from FSSAI/ AQCS in terms of Board‟s direction dated 27.01.2016 issued vide File No. 450/141/2015-Cus.IV. In response, an e-mail dated 10.12.2018 was received from the Protocol Officer (Special), Ministry of External Affairs informing that a verbal note was sent to the Embassy of Senegal requesting to send their representatives to attend the seizure proceedings and drawl of samples of item No. 1 for NOC from FSSAI/AQCS on Tuesday, 11 December, 2018. They also enclosed a letter dated 10.12.2018, addressed to the Embassy of Senegal requesting them to send their representatives to attend the proceedings on 11.12.2018.
11. Thus representatives of the Embassy of Senegal namely Mr. Papa Assane Mbengue, Counselor, Embassy of Senegal in India & Mr. Andre Waly Sedar Sarr, First Secretary, Embassy of Senegal in India along with Mr. Rahul Bhardwaj attended the examination by Customs.
12. Further, the impugned imported consignment found contain 14,40,000 sticks of Gudang Garam Brand cigarettes packed in 6000X12 packets, which did not conform the regulations of Tobacco and other Tobacco Products Act (COTPA) as they did not carry the stipulated Pictorial and Verbal Warning 85% of the packets of cigarettes to be covered with health warnings wherein 60% will be devoted to pictorial warnings while 25% will be covered by textual warnings), therefore, those 14,40,000 sticks of Gudang Garam brand cigarettes were seized under Section 110 of the Customs Act, 1962 vide Seizure memo dated 11.12.2018 on the-reasonable belief that same were liable for confiscation under Section 111 of the Act. The valuation of the cigarettes of Gudang Garam was taken as Rs. 1200/ per danda as per value adopted by the Customs from IGI Airport, New Delhi vide D.R. No. 3549 dated 11.08.2018 in cigarettes at Rs. 72,00,000/- (120x50x1200), respect of Gudang Garam cigarettes. Thereby, making the value of the cigarettes at Rs. 72,00,000/- (120 x 50 x1200).
613. Thereafter, samples of food items drawn from the impugned consignment imported by the Embassy of Senegal were forwarded to Shri Vijay Kumar Teotia, Regional Officer, AQCS, Kapashera, New Delhi vide letter C. No. VIII(B)40/ICD-GH/BE No. 8005732/632/18-19/2272 dated 12.12.2018 for testing to obtain the NOC for clearance of the goods. Subsequently, the Regional officer vide their letter F. NO. 4-24/18-19/AQCS(ND)/4168 dated 13.12.2018 submitted their findings such as "the above consignment is not fulfilling the import health guidelines & requirement under the schedule of the Notification No. S.O. 2666(E) dated 16.10.2014. The health status of the consignment is doubtful as imported without official health certificate mentioning the health status including "Fit for human consumption". There is no provision of testing to regularize the improperly imported consignments.
Hence, in exercise of the power conferred by Section 3A of the Live Stock Importation Act, 1898 (9of 1898) under the Notification no. S.O. 2666 dated 16.10.2014, Para 501) and (ii), the consignment is ordered for immediate deportation/destruction (Rejected) as the case may be under intimation to AQCS, New Delhi in larger National Interest."
14. The above placed finding in Para 11 & 13, were conveyed to the Embassy of Senegal by the MEA vide No. D.VI/451/2052)/2018 dated 27.12.2018 that the Gudang Garam brand Cigarettes have been seized under Section 110 of the Customs Act, 1962 and the remaining food supplements and other food stuff could not be cleared from the Animal Quarantine angle to enter into India. Thus, the MEA suggested Embassy of Senegal to consider re-exporting the container back to the originating place to avoid any further penalty/demurrage charges. Consequently, the Embassy of Senegal vide letter No. 000018 / ASI dated 22.01.2019 submitted that in light of non-clearance of their import consignment they intended to re-export the entire consignment to the same shipper. Thus, they might be allowed to file the shipping bill for export as per examination report dated 24.09.2018 with waiver of port charges. From the letter of Embassy of Senegal, it appeared that it is silent about the import of Gudang Garam Cigarettes (Prohibited goods).
15. Further voluntary statement of Shri Rahul Bhardwaj S/o Shri Dharampal Bhardwaj, Customs Broker was recorded on 29.12.2018 under Section 108 of the Customs Act, 1962. He stated that the subject bill of entry was filed by him on the basis of documents provided by the representatives of the Embassy i.e. authority letter issued by the Embassy of Senegal in his firm's name and complete set of Exemption certificate attested by MEA with self- declaration by the Embassy duly stamped by MEA. Further he stated that he did not find any mismatch between documents because the value of goods matched as per invoice, bill of lading and exemption certificate.
16. It appeared that the recovered 14,40,000 sticks of Gudang Garam brand cigarettes were tried to be imported by way of mis-declaration, found not conforming to Cigarettes and other Tobacco Products (Packaging and Labelling) Amendment Rules, 2017 and the Legal Metrology Act. Therefore, those Gudang Garam brand Cigarettes have been put under seizure under Section 110 of the Customs Act, 1962 on the reasonable belief that same were liable for confiscation under Section 111 of the Act. The AQCS in respect of food supplements and food stuff imported by the Embassy of Senegal had submitted that food supplements and other food stuff could not be cleared from the animal quarantine angle to enter into India. Hence, directed that the said food stuff/ supplements either to be deported or destructed. It appeared that the Gudang Garam Cigarettes were found to be not conforming Cigarettes and other Tobacco Products Act (COTPA) regulations and the food stuff and food supplements were not allowed by the AQCS for importation into India, which was in violation of Livestock Importation Act, 1898. It appeared that the DGFT 7 Para 2.08 of the FTP 2015-2020 governs the Export/Import of Restricted goods/Services, which says that "Any goods / service, the export or import of which is 'Restricted' may be exported or imported only in accordance with an Authorization/Permission or in accordance with the procedure prescribed in a Notification / Public Notice issued in this regard". Further, Section 2(33) of the Customs Act, 1962 defines the term 'prohibited goods' and provides that "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but did not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. It appeared that the food supplements and Cigarettes found in the subject consignment did not conform the regulations and provisions of Livestock Importation Act, 1898 and COPTA, 2017, respectively, therefore, the imported goods i.e. Gudang Garam Cigarettes & food supplements are nothing but prohibited goods under the provisions of Section 11(2)(s) of the Customs Act, 1962.
Thus it appeared that Shri Andre Waly Sedar Sarr was involved in the attempted evasion of customs duty applicable on the impugned imported Cigarettes and Food Supplement/proteins in as much as that he imported cigarettes and food supplements/protein in commercial quantity by availing exemptions meant for Diplomats/Agents of Embassy for their personal/family/use by Embassy. More so mis-declaration of the goods i.e. Foods Supplements and non-declaration of cigarettes to MEA while issuance of the subject Exemption Certificate also corroborates his unscrupulous intents. It also appeared that Sh. Andre Waly Sedar Sarr, the importer, while filing the aforementioned Bill of Entry side stepped the statutory provisions contained under Section 46 of the Customs Act 1962 read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 and failed to make a truthful statement with regard to the goods in question. It will not be out of place to mention that Bill of Entry was a legal document required to be filed at the time of importation of the goods. Given the nature and importance of the document, the contents of the Bill of Entry have necessarily to be true and accurate for the purpose of validating the import of such goods. Therefore, it appeared that Sh. Andre Waly Sedar Sarr, the importer violated/contravened the provisions of Section 46 of the Customs Act, 1962 read with Rule 11 of Foreign Trade (Regulation) Rules, 1993 in as much as the descriptions and value of the goods were not declared correctly in the Bill of Entry No.8005732 dated 11.09.2018 and also some of the items mis-declared in terms of description and quantity. By their act of willful suppression of facts by filing incorrect description, and value of the imported goods leading to mis- declaration of description and value of the goods in the subject Bill of Entry, Sh. Andre Waly Sedar Sarr, the importer thereby rendered the impugned goods liable for confiscation under Section 111 (m) of the Customs Act, 1962. Also, Sh. Andre Waly Sedar Sarr, the importer intentionally declaring incorrect description and value of the goods along with non-declaration of several items in the Bill of Entry No. 8005732 dated 11.09.2018 have suppressed information from the Customs authorities with the sole intent to evade applicable Customs duty and thereby rendered himself liable for penal action under Section 112 (a) of the Customs Act, 1962. Besides Sh. Andre Waly Sedar Sarr also got was sued the subject Exemption Certificate on the basis of an invoice, wherein only name Gudang Garam was mentioned and concealing the description of the goods i.e. Cigarettes. This act of his also corroborate illicit intents of Sh. Andre Waly Sedar Sarr to evade the applicable customs duty on the basis of manipulated documents and thereby rendered himself liable to penalty under Section 114AA of the Customs Act, 1962.
7. In view of the aforementioned proceedings and order-in-original, it appeared to Revenue that Sh. Rahul Bhardwaj, the Customs Broker is also guilty 8 of mis-declaration alongwith the importer as he has knowledge that Gudang Garam brand was a brand of cigarette. It further appeared to Revenue that the appellant being the Customs Broker must have knowledge that exemption can only be availed under some exemption circular/ policy. In the instant case, cigarettes is not mentioned in the relevant exemption certificate, yet he has filed the subject Bills of Entry claiming exemption for cigarette also. Further, the appellant failed to bring the relevant facts to the knowledge of the Department.
Further, the Embassy of Senegal have also taken the stand in reply to the show cause notice that they were not aware of any other orders/ laws which they have claimed the offending goods as exempt. It appeared to Revenue that the Customs Broker has not provided all the information with respect to the goods entitled to be imported by the Embassy. The appellant even withheld the information from the Department with respect to mis-match between the details given in Bill of Lading and invoice. Thus, it appeared that the appellant have violated the Regulation 10(d)(e) and (f) of CBLR, 2018.. Accordingly, the show cause notice dated 22.08.2019 was issued to the appellant. Vide the impugned order-in-original, the aforementioned penalty and forfeiture of security deposit has been ordered. Being aggrieved, the appellant preferred the appeal before this Tribunal.
8. Learned Counsel Sh. Piyush Kumar for the appellant urges that the impugned order is bade in law and on facts. The impugned order is passed in mechanical way without application of mind. It is evident from the documents on record that the appellant - Customs Broker has advised the importer Sh. Andre Waly Sedar Sarr, First Secretary, Embassy of Republic of Senegal to comply with the provisions of Customs Act and other Rules and Regulations in the appointment letter appointing the appellant to act as Customs Broker issued by the said First Secretary, clearly declared that "we declare that we have read and understood customs law, Foreign Trade Policy/ Procedure and other law for the 9 time being in force in India for import/ export, and documents submitted are true, complete and correct in all manner and nothing has been concealed or attempted to be concealed ." Further, the appellant stated that Embassy Officer was aware about the entitlement to import under the exemption certificate for which also the importer had filed a self certification on 18.08.2018 declaring therein that he was fully aware of the customs provisions, wherein he inter-alia declared that -
"(1) I am aware that under the Customs Act, 1962 and Notification of the Government of India, there are prohibitions on importation and exportation of specified goods.
(2) I am also aware that import and export of some specified goods may be restricted/ prohibited under other laws such as Foreign Trade (Development & Regulation) Act, Foreign Trade Policy, Environment Protection Act, Wild Life Act, Livestock Importation Act, The Foreign Exchange Management Act, The Trade Marks Act, Arms Act, Drugs and Cosmetic Act etc. Prohibitions under those Acts will be treated as prohibitions under the penal provisions of customs Act rendering such goods liable to confiscation under section 111(d) of Customs Act (for import) and 113(d) of Customs Act (for export).
(3) I am aware that some of the prohibitions and restrictions for both imports and exports are listed below:
Prohibited items Fire arms...............
Restricted items.
Arms and Ammunition......
(4) (iv) That import of liquor, cigarettes, food stuffs and provisions are in accordance with the prescribed norms of MEA."
9. It is further urged that the stand taken vide letter dated 01.03.2019 that they were not aware of any other orders/ laws which forbade them to claim the offending goods. Further, it is also submitted that copy of the said letter was not provided to the appellant to meet the allegation of the Revenue. It is further urged that import of cigarette is not prohibited items, but restricted. Thus, it is incorrectly held that the appellant have violated the provisions of Regulation 10(d) of CBLR, 2018. Further, the appellant has exercised due diligence in carrying out his duties. The appellant knew that in case of diplomatic consignment etc. cigarette are exempt from payment of customs duty under Notification No. 3/57- Cus. dated 08.01.1957, when the same are imported for their personal use or use 10 in the Diplomatic Mission. In the instant case, importer was First Secretary in the Embassy of Republic of Senegal and therefore they are eligible for the aforesaid exemption in so far as import of cigarettes is concerned. Further, the appellant did declare in the Bill of entry details of cigarette as per the import documents.
Further, the importer has produced the exemption certificate dated 16.08.2018 in form 10A - Customs Duty Exemption Certificate in respect of quota items (liquor/ Cigarettes/ flood stuff) imported for the personal use of entitled members of Diplomatic Mission. Thus, the finding of the Commissioner in the impugned order is erroneous that there is violation of Regulation 10(d)(e) and (f).
10. Learned Counsel further draws attention to Miscellaneous Application No. C/Misc./50063/21-SM filed in this appeal on 02.02.2021 have brought on record, the order-in-appeal passed by the Commissioner (Appeals) being Order-in-appeal No. CC(A)Cus./D-II/ICD PPG/947/2020-21 dated 12.10.2020 against order-in-original dated 24.09.2019, whereby the Joint Commissioner of Customs had imposed penalty of Rs. 5 lakhs under Section 114AA and Rs. 50,000/- under Section 117 of the Customs Act on this appellant.
Learned Commissioner (Appeals) have recorded the following findings and allowed the appeal setting aside both the penalties under Section 114AA and 117 of the Customs Act, 1962 with consequential relief-
"5.3 I find from the facts that the importer being First Secretary in Embassy of Senegal fell in the category of privileged person and was entitled to import goods for his personal use under Notification No. 03/57- Cus dt. 08.01.1957. The importer was holding a valid Exemption Certificate which referred to Invoice No. 6062 dt. 14.08.2018 and B/L No. 03700205/0007084/19 dt. 14.08.2018. The invoice mentioned various items which included GUDANG GARAM (60*10), QTY -50. In fact, with his personal knowledge, the appellant correctly declared them as CIGARETTES. As per exemption notification No. 3/57-Customs, all goods are allowed to be imported by diplomat duty free for personal use and there is no exclusion for cigarettes. The fact that the exemption certificate did not cover cigarettes was informed by MEA only on 14.09.2018 on specific query from the Department and the appellant had no means to know the cigarettes were not covered by the said exemption certificate. In fact, had the declaration been made only GUDANG GARAM (60*10), QTY
- 50, there would have been no means to ascertain whether it was 11 cigarettes or not. Thus, there is no fault or any violation in declaring item GUDANG GARMA (60*10), QTY-50 as CIGARETTES in bill of entry.
5.4 There is another finding in the order that despite knowing that the consignment comprised of food stuff, the appellant did not forward the same for ADC/AQCS for NoC. To my mind this finding is also incorrect insofar as the appellant had declared the goods and attached all relevant documents. If any NOC was required, the same was responsibility of the assessing officer. It is not the case that the mis-declared or mis-classified goods to escape ADC/AQCS NoC.
5.5 It has been held that the appellant violated the provisions of Regulation 10(d) and 10(e) of Customs Broker Licensing Regulations 2018. However, this finding is not correct. In this regard, I refer to case of M/s Trading Corporation Pvt. Ltd., (2017 (7) TMI 701 (CESTAT- CHENNAI). In this case, CHA was penalised on the ground that despite knowing that import of drugs etc. required import license/ ADC/NOC as per the Drugs and Cosmetics Act, 1940, bills of entry were filed, without the same. The Tribunal set aside the penalty holding that „the role of CHA, and his job is only to file the bill of entries. It is inconceivable that a CHA, whose job is only to file bill of entries, making the proper declarations as per the information given by the importer and to assist an importer for clearance of the goods, would be aware of the technical laws of production of various licences for an import of a particular item, so as to invoke penal action against him."
11. In view of the aforesaid findings of the learned Commissioner (Appeals) in the main show cause notice, wherein the said Diplomat was also a co-noticee, the appellant Customs Broker have been granted clean chit with full relief. Accordingly, the cause of action under the CBLR does not survive.
12. Accordingly, I set aside the impugned order and allow the appeal with consequential benefits, in accordance with law. The miscellaneous application stands disposed of accordingly.
(Pronounced on 20.01. 2022).
(Anil Choudhary) Member (Judicial) Pant