Bombay High Court
Bruce Logistics Pvt. Ltd vs Union Of India Through The Secretary And ... on 14 August, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
Digitally
2024:BHC-OS:12491-DB
signed by
GAURI GAURI AMIT
GAEKWAD 1/5 922.CUAPP-17-2023.doc
AMIT Date:
GAEKWAD 2024.08.16
16:44:05
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOMS APPEAL NO.17 OF 2023
Bruce Logistics Private Limited ....Appellant
V/s.
Union of India and Anr. ....Respondents
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Mr. Brijesh Pathak for appellant.
Mr. Jitendra B. Mishra a/w. Mr. Satyaprakash Sharma and Mr. Rupesh
Dubey for respondents.
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CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATED : 14th AUGUST 2024 P.C. :
1 Appellant has proposed the following three revised substantial questions of law :
A) Whether the Hon'ble Tribunal has erred in its Final Order dated 10.12.2019, Exhibit B, by mechanically finding at para 4.12 that : "The forfeiture of security deposit for the same would have been adequate taking into account the fact that the goods sought to be cleared, were "blank guns" which could have been modified into lethal weapons jeopardizing the National Security and the security of individuals", and that such finding was contrary and beyond the four corners of the Grounds of Imputation issued with Order dated 27.09.2017 under the provisions of CBLR, 2013?
B) Whether the Hon'ble Tribunal has erred in brushing aside the Test Reports issued by Forensic Science Laboratories, Kalina dated 13.11.2017 and Central Forensic Science Laboratory, Hyderabad dated 31.05.2018, whereby there was no finding that the imported guns could be modified into any lethal weapons?
Gauri Gaekwad
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C) Whether the Hon'ble Tribunal has erred in its Final Order dated 10.12.2019 by ordering forfeiture of security deposit, only on the reasonings that the goods sought to be cleared, were "blank guns"
which could have been modified into lethal weapons jeopardizing the National Security and that such finding was contrary and beyond the four corners of the proceedings conducted under CBLR?
2 Appellant is a Customs Broker who was approached by one M/s. Airsoft Gun India (the Importer) in the year 2015 to assist for clearance of Metal Toy Gun/Blank Firing Gun. Appellant took up the consignment and filed necessary bill of entry on behalf of the Importer. The assessment was completed at which time the goods were examined based on the samples drawn under the applicable Arms Act. The Appraising Group forwarded the samples with a query as to whether the metal toy gun are dummy or real guns or can be modified as real gun to Truth Lab, which is an independent forensic laboratory. The Lab submitted a report dated 10th December 2015 opining that the pistols were non lethal to humans and would not come under the purview of the Indian Arms Act. The first consignment following the reports received was allowed to be cleared under the Custom Tariff Heading (CTH) 9503. Four more consignments were cleared after carrying out necessary verification during the period 2016-2017 under CTH 9503.
3 The bill of entry dated 9th May 2017 for the sixth consignment of the Importer was filed by appellant and duty payment was also made Gauri Gaekwad ::: Uploaded on - 16/08/2024 ::: Downloaded on - 23/08/2024 13:51:43 ::: 3/5 922.CUAPP-17-2023.doc under "First Check basis" and assessment. The goods were not removed from the customs area and the Importer sought a technical clarification from the exporters whether the goods would come under the purview of the new Arms Rules 2016, which permitted time upto July 2017, to produce a license in case applicable. The goods were thereafter confiscated by the SIIB(I), ACC on the allegation that the goods being imported are restricted and requires license under Arms Rules 2016. It was also alleged that the goods imported were mis-declared and wrongly classified. Statements of the Importer and Director of appellant were recorded. The Importer and Director of appellant were arrested and later released on bail and an offence report was sent by the Principal Commissioner of Customs (I), SIIB, ACC to the office of respondent. Detailed representation was filed by appellant to revoke the order suspending the Customs Broker License of appellant. The suspension order continued vide order dated 15 th September 2017 and finally based on various reports, the impugned order-in-original dated 20th March 2019 was passed revoking the Customs Broker License of appellant.
4 Appellant, being aggrieved by the aforesaid order-in-original, filed an appeal before the Customs Excise and Service Tax Appellate Tribunal, Mumbai (CESTAT). Two appeals were filed, one against the order of suspension of the Customs Broker License and the other appeal was against the order revoking the Customs Broker License. The Tribunal was Gauri Gaekwad ::: Uploaded on - 16/08/2024 ::: Downloaded on - 23/08/2024 13:51:43 ::: 4/5 922.CUAPP-17-2023.doc pleased to dispose both the appeals by a common order passed on 10th December 2019. The Tribunal was pleased to allow the appeal against the order of revocation of Customs Broker License of appellant. The other appeal against suspension of the Customs Broker License was dismissed as infructuous.
5 Other than revocation of appellant's license, respondent had also forfeited the deposit of Rs.5 lakhs which appellant had made under the Customs Brokers Licensing Regulations. In the order passed by the Tribunal, the Tribunal has in effect accepted the forfeiture of security deposit by respondent. The relevant portion of the order of Tribunal reads as under :
xxxxxxxxxxxxxx In our view the only additional advice that he could have rendered in respect of the consignments imported and cleared under CTH 9503 could have been for complying with the requirements of ITC (HS) Import Policy, Condition No.2 for import of goods under that heading. In case the said certificate was produced or insisted upon before clearance of goods the the entire case of misdeclaration/ misclassification could have been averted. In our view revocation of licence for that would be too harsh a punishment for the same when Custom officers also have not insisted for the same. The forfeiture of security deposit for the same would have been adequate taking into account the fact that goods sought to be cleared, were "blank guns" which could have been modified into lethal weapons jeopardizing the National Security and the security of individuals. xxxxxxxxxxxxxx
6 In the order-in-original respondent had given a factual finding against appellant holding that appellant was responsible to advise the Importer to follow rules and regulations governing clearance of the imported goods and any non-compliance should have been brought to the Gauri Gaekwad ::: Uploaded on - 16/08/2024 ::: Downloaded on - 23/08/2024 13:51:43 ::: 5/5 922.CUAPP-17-2023.doc notice of the Customs Authorities. There is also a factual finding that appellant had suggested to the Importer to mis-declare the imported goods in order to aid and abet the Importer in circumventing the requirement under both Foreign Trade Policy and the Arms Act, 1959 read with the Arms Rules, 2016 as amended. There is a factual finding that appellant was having knowledge of such mis-declaration and accordingly mis-classification under CTH 9503 being "Blank Firing Guns" and required DGFT license under the import policy and license under the Arms Act, 1959 read with Arms Rules, 2016. This factual finding, in our view, has been accepted by the Tribunal in the portion quoted above. 7 Therefore, since it was only on the basis of factual finding, in our view, no substantial questions of law arise. 8 Appeal dismissed.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
Gauri Gaekwad
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