Custom, Excise & Service Tax Tribunal
Pacific Logicare Services Llp vs Commissioner Of Customs -Ii Chennai on 14 June, 2024
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHENNAI
REGIONAL BENCH - COURT No. III
Customs Appeal No. 40642 of 2023
(Arising out of Order-in-Original No. 63711/2018 dated 01.06.2018 passed by Commissioner
of Customs, Custom House, No. 60, Rajaji Salai, Chennai - 600 001)
M/s. Pacific Logicare Services LLP ...Appellant
Room No. 1/23, 1st Floor,
Vathiyar Kandhappa Street,
Choolai,
Chennai - 600 112.
Versus
Commissioner of Customs ...Respondent
Chennai II Commissionerate, Custom House, No. 60, Rajaji Salai, Chennai - 600 001.
APPEARANCE:
For the Appellant : Mr. G. Derrick Sam, Advocate For the Respondent : Mr. R. Rajaraman, Authorised Representative CORAM:
HON'BLE MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) HON'BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) FINAL ORDER No. 40667 / 2024 DATE OF HEARING : 05.03.2024 DATE OF DECISION: 14.06.2024 Order :- Per Mr. VASA SESHAGIRI RAO Customs Appeal No. C/40642/2023 has been filed by the Appellant assailing Order-in-Original No. 63711/2018 dated 04.06.2018 passed by Commissioner of Customs, Chennai-VIII revoking the Customs Broker Licence issued to the Appellant and forfeiting the security deposit of 2 C/40642/2023 Rs.5,00,000/- and imposing a penalty of Rs.50,000/- on the Appellant under Regulation 18 of CBLR, 2013.
2.1 Brief facts are that Mumbai Customs investigated a case of mis- declaration and fraudulent export of "Uric Acid" by M/s. Royal Enterprises through the Appellant (Customs broker) by over valuation of export consignment to claim undue higher drawback. During the course of investigation, incriminating documents and articles were recovered by Customs from the premises of the Appellant. Investigation revealed that the Appellant had allowed M/s. A.P. Cargo Enterprises to use the Customs Broker Licence for a monetary consideration of Rs.28,000/- per month and share in profits of income earned on clearances. Further investigation of tested samples from the export consignment revealed that the item attempted to be exported was actually Calcium Carbonate and not "Uric Acid" and thus there was both mis-declaration of goods and value. 2.2 The Department entertained the view that the Appellant, a CHA, did not exercise due diligence in discharging their obligations as required under the relevant provisions of Customs Broker Licencing Regulations (CBLR), 2013. Accordingly, Order of Prohibition No. 33/2017-18 dated 08.09.2017 was issued on 12.09.2017 by Mumbai Customs authorities prohibiting the operation of licence of the Appellant and a copy of which was endorsed to Chennai Customs Authorities for further action. Subsequently, Customs, Mumbai Ordered for continuation of the Order of prohibition vide order No.46/2017-18 dated 10.11.2017, a copy of which was also endorsed 3 C/40642/2023 to Customs, Chennai. Based on the above Prohibition order, the Order of Suspension of Customs Broker Licence of the Appellant was made by Customs, Chennai under the provisions of regulation 19(1) of CBLR,2017 on 12.10.2017 and vide Order-in-Original No.59514/2017 dated 08.11.2017, continuation of Suspension of licence of the Appellant was ordered for by the respondents as per regulation 19(2) of CBLR, 2013.
2.3 From the facts, it appeared to the department that the Appellant had failed in discharging their obligations as the Customs broker as required under Regulation 11(b),(d),(k),(n),17(5) and 17(9) of CBLR, 2013. Regulation 18 of CBLR,2013 stipulates that the Commissioner of Customs subject to the provisions of Section 20 of CBLR, 2013 may revoke the licence of Customs Broker and order for forfeiture of part or whole of security or impose penalty not exceeding Rs.50,000/- on various grounds and accordingly the department issued a Show Cause Notice dated 17.12.2017 to the Appellant as per regulation 20(1) of CBLR,2013 seeking to revoke the license issued, to forfeit the security deposit and to impose penalty under the Regulation 17 & 18 of CBLR, 2013.
2.4 After due process of law, the Adjudicating Authority vide the impugned Order-in-Original dated 01.06.2018 revoked the Customs Broker Licence issued to the Appellant and forfeited the security / Bank Guarantee of Rs.5,00,000/- and imposed a penalty of Rs.50,000/- on the Appellant under Regulation 18 of CBLR, 2013.
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C/40642/2023 2.5 Aggrieved, the Appellant filed a writ petition before the Hon'ble High Court vide WP No.26507/2021 seeking to quash the impugned order on various grounds and the Hon'ble High Court vide its order dated 19.07.2023 disposed the Petition by directing the appellant to file an appeal before the Hon'ble Tribunal within 30 days. In pursuance of the above directions, the present appeal was filed before this forum by the Appellant.
3. The main grounds of appeal are:
i) That the impugned order passed by the lower adjudicating authority was without jurisdiction and without authority of law and in excess of powers vested with the respondent as it is contrary to the regulations contained in CBLR,2013.
ii) The Appellant denied violating any provisions of regulations referred to in the impugned order.
iii) It was averred that the entire proceedings stood abated in view of the failure of the department to issue a Show Cause Notice to the Appellant within a period of 90 days from the date of receipt of an offence report. It was pointed out that shipping bill was filed in May 2017 and the Prohibition order dated 08.09.2017 was issued by Additional Commissioner of Customs, Mumbai based on the offence report dated 14.06.2017 which was forwarded to Chennai Customs which issued SCN dated 17.12.2017 and the impugned order of revocation dated 01.06.2018 issued by the Department was beyond the 5 C/40642/2023 mandatory time period of 90 days in terms of Regulation 20(1) and 20(5) of CBLR, 2013.
iv) It was submitted that the question of following the time limits as provided under various regulations of CBLR, 2013 was mandatory or directory as decided by various judgements pronounced by various fora.
In this regard reliance was placed on the following judgements:
a) The ratio of the decision in the case of Commissioner of Customs Vs. Ahmed & Co., wherein the Hon'ble High Court held that the issuance of notice within 90 days was mandatory and therefore the entire proceedings stood automatically abated if no action was taken within 90 days.
b) It was submitted that the division bench of Hon'ble High Court, Chennai in its judgment dated 13.10.2017 in the case of M/s.
Santon Shipping Services vs. The Commissioner of Customs, Tuticorin and another, after referring to various judgments had clearly held that the non-issuance of show cause notice within the period of limitation as provided under Regulation 22(1) CHALR, 2004 (now Regulation 20(1) of CBLR, 2013) is bad in law.
c) It was submitted that the Hon'ble Division Bench of the Hon'ble High Court at Madurai Bench in the case of CC, Tuticorin vs. MKS Shipping Agencies Pvt. Ltd. [2017 (348) E.L.T. 640 (Mad.)], has categorically held that "that the period of 90 days prescribed under Regulation 22(1) of CHALR (now 20(1) of CBLR,2013) is mandatory in nature and cannot be treated as directory and therefore the non- submission of inquiry report within 90 days from the date of the impugned SCN or from the date of submission of statement of defence by the Appellant clearly vitiates the SCN.
d) The Hon'ble Madras High Court in the case of Carewell Shipping Pvt., Ltd., vs. Commissioner of Customs and others dated 22.11.2018 in W.P.No.26923 & 26924 of 2018, in its order dated 6 C/40642/2023 28.11.2019 in a batch of writ petitions relating to M/s. KTR Logistics and others, held that the time limit stipulated under the Regulations for issuing SCN as well as the filing of report is mandatory and not directory/ regulatory. Even in the case of M/s. Maruvur Arasi Logistics Ltd., the Hon'ble High Court of Madras had held that the time periods prescribed under the Customs Broker Licensing Regulations are Mandatory.
e) The Appellant further placed reliance on the following judgments:(1) Commissioner -vs- Trinity Sea & Air Pvt. Ltd. - 2017 (350( ELT A61 (Del) (2) Indian Carrier P. Ltd., -vs- CC - 2016 (337) E.L.T. 41 (Del.) (3) Necko Freight Forwarders Ltd., -vs- CC - 2018 (360) E.L.T. 879 (Del.) (4) Sowparnika Shipping Services -vs- CC, Chennai - 2017 (352) ELT 286 (Mad), (5) Impexnet Logistic - vs-CC
- 2016 (338) ELT 347 (Del)
v) It was pointed out that the overall time limit of 9 months from the date of receipt of offence report for issuance of Show cause Notice as prescribed under Board's Circular No.09/2010 dated 08.04.2010 was not complied with as the entire proceedings have not been completed by 13.03.2018 from the date of offence report dated 14.06.2017.
vi) It was argued that the impugned order failed to take into consideration the ratio of the decision in the case of Harini Freight Logistics Vs CC [2016 (343) ELT 590 (Tri.-Mum.)] and Daroowala Bros and Co. Vs. CC [2016 (333) ELT 182 (Tri.-Mum.)] as in the subject case, the Department had not alleged any misfeasance, criminality or malafide against the Appellant while the department itself admitted that there is no direct role for evasion by the Appellant and that there was no evidence that the Appellant was paid any extra money and sharing the benefits of fraudulent imports and therefore the imposition of penalty was legally not sustainable.
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vii) It was submitted that the Appellant was transacting business as per Rules and Regulations with an unblemished track record and never came to the adverse notice of the Customs authorities and hence the revocation of license resulted in their operations coming to a standstill.
4. Ld. Advocate for the Appellant, Shri Derrick Sam reiterating the grounds of appeal, prayed for setting aside the impugned order by relying on the following judgments: -
i. Transport Logistics Vs. CESTAT, Chennai [2016 (338) ELT 380 (Mad)] ii. Ashiana Cargo Services Vs. Commissioner of Customs (I&G) [2014 (302) ELT 161 [(Del.)] iii. Buhariwala Logistics Vs. Commissioner of Customs (I&G), New Delhi- [2016 (331) ELT 6339 (Tri-Del.)] iv. ARK Logistics (p) Ltd. Vs. Commissioner of Central Excise, Hyderabad [2010 (261) ELT 648 (Tri.-Bang.)]
5. The Ld. Authorised representative Shri R. Rajaraman representing the Department reiterated the findings of the lower Adjudicating Authority and submitted that the Appellant has violated the relevant provisions of CBLR, 2013 and hence the revocation of licence and imposition of penalty on the Appellant were justified considering the facts and circumstances of the case. The Ld. AR further submitted a letter dated 15.02.2024 of Custom House, Chennai enclosing the letter dated 15.09.2017 of Customs Broker Section, Mumbai-I mentioning Prohibition order, investigation report, etc., as enclosures, for evidencing that the said prohibition order was received in Customs, Chennai only on 18.09.2017. 8
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6. Heard both sides and carefully considered the submissions and evidences on record.
7. The issues that arise for decision in this appeal are :-
i. Whether time limits prescribed in terms of Regulation 20 of Customs Brokers Licensing Regulations, 2013 for revoking licence or imposing penalty are complied with or not?
ii. Whether the contravention of CBLR, 2013 as alleged against the appellant justify the revocation of the Customs Broker's Licence No. 309/2014-CHA?
8. The investigations conducted against the appellant for over- valued and fake exports of 'Uric Acid' in the names of M/s. Royal Enterprises, M/s. Ambica Trading and M/s. D J Enterprises in order to claim illegal drawback and the search of the appellant's premises on 24.05.2017, have resulted in seizure of various incriminating documents such as Certificates of Origin, Duplicate Rubber Stamps of all the three Exporters, Rubber Stamps of State Bank of India, Stamp of Senior Manager, Oriental Bank of Commerce, one Stamp bearing the name of the International Trading Co., Mumbai and forged letter head of supplier M/s. Paladin Paints and Chemicals Pvt. Ltd. as well as duplicate rubber stamp.
9. The Customs Broker has intentionally contravened the provisions of Customs Broker Licencing Regulations, 2013 by allowing Shri Ulhas Gate, 9 C/40642/2023 Proprietor of M/s. A.P. Cargo Enterprises to use the Customs Broker Licence for a monetary consideration of Rs.28,000/- per month in addition to profit sharing on the transactions undertaken. It was found that the entire CHA business was found transacted through an employee of M/s. A.P. Cargo Enterprises viz., Shri Sadanand R Rokade who was not holding and issued with any Customs pass on behalf of the Customs Broker. The Lower Adjudicating Authority has concluded that the Customs Broker has failed in discharging their obligations as Customs Broker as required under Regulation 11(b),(d),(k),(n),17(5) and 17(9) of CBLR, 2013 as the Customs Broker has lent his Licence to M/s. A.P. Cargo Enterprises for a monthly consideration and also sharing profits of the business transacted.
10. The main argument of the appellant centred around that the Department has not adhered to the time limits prescribed for issuance of Show Cause Notice, conducting an inquiry and adjudication of the case as required under Regulation 20 of CBLR, 2013 and also as directed in Board's Circular No. 9/2010 dated 08.04.2010 which is extracted below for convenience:-
"Suspension or revocation against CHAs operating on 'C' form intimation basis 5.1. CHALR, 2004 provide a facility for the CHAs who have been issued a license from a particular customs station to operate under Form 'C' intimation at another customs station. In case of such CHAs, who are found to have violated any provision of the CHALR, 2004 at any customs station, it is clarified that the suspension action against CHA's operations maybe taken by the Commissioner of Customs at the station who issued the CHA license and such action would either be limited to a particular customs station where a violation has been noticed or action against the CHA in general, applicable at all customs stations where the CHA operates, depending upon the gravity and seriousness of the violation. Where the CHA licence is suspended, all 'G' and 'H' cards issued in respect of that licence would become non-operational.10
C/40642/2023 5.2. Further, it is also clarified that the Commissioner of Customs at a customs station who had authorised a CHA to operate on 'C' form intimation, should inform the details of violations to the Commissioner of Customs at the customs station from where the CHA licence was issued for such CHA, so that necessary action for suspension or revocation of CHA licence, could be initiated by him. This would avoid duplication and ensure uniformity in adjudication of a case against a CHA in suspension or revocation proceedings by the Customs field formations. However, the Commissioner of Customs, who had authorised a CHA to operate on 'C' form intimation at a customs station, may take action in deserving cases under regulation 21 of CHALR, 2004 for prohibiting the working of such defaulting CHA in any section of the Custom House/Customs Station.
"v) Time limit for completion of suspension proceedings against CHA licensee under regulation 22:
7.1. The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings.
Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stages of issue of Show Cause Notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording his findings on the issue of suspension of CHA license, and for passing of an order by the Commissioner of Customs. Suitable changes have been made in the present time limit of forty five days for reply by CHA to the notice of suspension, sixty days time for representation against the report of AC/DC on the grounds not accepted by CHA, by reducing the time to thirty days in both the cases under the Regulations.
7.2 In cases where immediate suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the procedure prescribed under Regulation 22 since such an action is taken immediately and only in justified cases depending upon the seriousness or gravity of offence. However, it has been decided by the Board that a 'post-decisional hearing' should be given in all such cases so that errors apparent, if any, can be corrected and an opportunity for personal hearing is given to the aggrieved party. Further, Board has also prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). Accordingly, the investigating authority shall furnish its report to the Commissioner of Customs who had issued the CHA license (Licensing authority), within thirty days of the detection of an offence. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him."
11.1 The procedure for revocation of Licence and imposition of the penalty is detailed in Regulation 20 of the CBLR, 2013 which reads as follows:-
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(i)The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the licence or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(v) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his findings thereon submit the report within a period of ninety days from the date of issue of a notice under sub-
regulation (1).
(vii) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the licence of the Customs Broker or imposing penalty not exceeding the amount mentioned in regulation 22 within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5) 11.2 Thus, in terms of Regulation of 20 of CBLR, 2013, the Commissioner of Customs is mandated to issue a Show Cause Notice within 90 days from the date of receipt of offence report, the Assistant / Deputy Commissioner of Customs nominated has to complete the inquiry and submit his report within 90 days from the date of issuance of Show Cause Notice and then after considering the inquiry report and Customs Broker's representation, the Commissioner is required to issue the order of revocation or revocation of the suspension within 90 days from the date of submission of the inquiry report.
12. Now let us examine, whether these time limits prescribed have been complied with or not in this appeal. We find that the report dated 14.06.2017 of Additional Commissioner, on violations of CBLR, 2013 by the 12 C/40642/2023 Customs Broker as pointed out by the Appellant was mentioned at Para 12 of Prohibition order No. 46/2017-18 issued by Customs, Mumbai. However, this report dated 14.06.2017 was relevant only for the purpose of issuance of Prohibition order by Mumbai Customs in terms of Para 5.2 of the Board's Circular dated 08.04.2010 and is not the same as specified in Para 7.1 of the said Board's Circular for computation of time limit. The offence report specified in Para 7.1 relates to the report submitted by the investigating authority to the licencing authority for the purpose of issuance of suspension order. Whatever report submitted to the investigative authority is irrelevant for reckoning the time limit specified in the said Board's Circular and Regulation 20 of CBLR, 2013 as the entire cause of action finally lies only with the licencing authority and not with the investigative authority. 13.1 We find that the relevant offence report mentioned in Board's Circular No. 09/2010 dated 08.04.2010 and regulation 20 of CBLR, 2013 issued by the investigative agency i.e, Mumbai Customs was sent to the licencing authority i.e, Chennai Customs for issuance of suspension order, Show Cause Notice, etc. As the first issue relates to determination of various dates for issuance of Show Cause Notice, inquiry report and adjudication of the Show Cause Notice in terms of Regulation 20 of CBLR, 2013, it is important to copy and paste the Letter of Mumbai Customs:- 13
C/40642/2023 13.2 In the instant case, Mumbai-I Customs have sent the Prohibition order along with investigation report vide letter dated 15.09.2017 which was received by Chennai Customs only on 18.09.2017 as evidenced by the date 14 C/40642/2023 seal on the inward correspondence. Hence the date of receipt of the prohibition order dated 08.09.2017 issued on 12.09.2017 by Mumbai Customs along with the investigation report, statements recorded and documents will be the date of reckoning for issuance of Show Cause notice in terms of regulation 20(1) of CBLR, 2013. We find that in the instant case, the Show Cause Notice was issued on 17.12.2017 well within the time limit of 90 days from the date of receipt of the abovesaid offence report in terms of Regulation 20(1) of CBLR,2013. We also find that the inquiry report was submitted by the inquiry officer on 12.03.2018 within a period of 90 days from the issuance of notice in terms of Regulation 20(5) of CBLR, 2013. The Adjudicating Authority has issued the Order-in-Original on 01.06.2018 well within the time period of 90 days from the date of submission of report by the inquiry officer as per Regulation 20(7) of CBLR, 2013. Hence, we find that the issuance of Show Cause Notice, inquiry report and its adjudication has been carried out strictly in terms of Regulation 20 of CBLR, 2013.
14. With regard to time limits specified under Board Circular No. 09/2010 dated 08.04.2010, it is seen that the prohibition order dated 08.09.2017 was issued on 12.09.2017 by Mumbai Customs and was forwarded vide letter dated 15.09.2017 along with the investigation report dated 14.06.2017 to Customs, Chennai which was received on 18.09.2017.
We find that Order-in-Original was issued 01.06.2018 within a period of nine months from the date of receipt of Prohibition order as stipulated under the said Board's Circular dated 08.04.2010.
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15. In view of the above, we find that the proceedings for revocation of licence of the Appellant are not hit by limitation and hence the reliance placed on various decisions by the Appellant as cited in Para 3 above are not relevant for this appeal.
16.1 On the second issue of grounds for revocation of licence, the impugned order dated 01.06.2018 of the Commissioner of Customs, Chennai, the licencing authority has clearly brought out the contraventions of provisions of CLBR, 2013 by the Appellant in paragraph Nos. 12 and 13 of the order. It is to be noted that the Licensee of the Customs shall :-
1. not sell or transfer license to any other person.
2. obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as Customs Broker and produce such authorisation whenever required by the Deputy Commissioner or Assistant Commissioner of Customs.
3. transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commissioner or Assistant Commissioner of Customs, designated by the Commissioner of Customs.
4. in the event of the license being lost, report the same immediately to the Commissioner of Customs.
5. ensure that he discharges his duties as Customs Broker with utmost speed and efficiency and without any delay.
6. comply with the obligations specified in regulation 10 of the Customs Brokers Licensing Regulations, 2018."
In this appeal, the Customs Broker has rented out the Licence to M/s. A.P. Cargo Enterprises due to his greed and avarice. It was the duty of the customs house agent to diligently check the veracity of import / export transactions and there is nothing on record about any such exercise or of due diligence by the appellant. The findings in the impugned order with 16 C/40642/2023 respect to violation of various Regulations of CBLR, 2013 are rather not disputed.
16.2 The Customs Broker to derive the financial benefit out of fraudulent transactions indulged in by Mr. Ulhas Gate of M/s. A.P. Cargo Enterprises who was the 'H' card holder had allowed his license to be misused and abused. The arrangement between the appellant and M/s. A.P. Cargo Enterprises is clearly meant to commit fraud as evidenced by seizure of innumerable incriminating documents such as certificate of origin, duplicate rubber stamps of Banks and the Managers of these Banks, forged letter heads, etc. Possession of these stamps, letter heads exhibits the criminal mentality of the personnel of M/s. A.P. Cargo Enterprises. Being a 'H' card holder, customs documents cannot be filed by Mr. Ulhas Gate or his employee viz., Rokade and the access has to be allowed for each transaction by the appellant. Fabrication of any documents is a very serious matter and requires to be seriously dealt with. At this juncture, we find it relevant to refer to the decision in the case of Noble Agency Vs. Commissioner of Customs, Mumbai [2002 (142) ELT 84 (Tri.-Mumbai)] wherein it was observed as follows:-
"12. The CHA occupies a very important position in the Custom House. The Customs procedures are complicated. The importers have to deal with a multiplicity of agencies viz. carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through these agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the Customs. A lot of trust is kept in CHA by the importers/exporters as well as by the Government Agencies. To ensure appropriate discharge of such trust, the relevant regulations are framed. Regulation 14 of the CHA Licensing Regulations lists out obligations of the CHA. Any contravention of such obligations even without intent would be sufficient to invite upon the CHA the punishment listed in the Regulations. ......"17
C/40642/2023 Blatant violation of the Customs Broker's Licensing Regulations, 2013 as committed by the appellant and M/s. A.P. Cargo Enterprises deserve no sympathy whatsoever. As such revocation of License is fully justified.
17. However, the Ld. Advocate has submitted that the appellant was innocent and was cheated by M/s. Ulhas Gate of M/s. A.P. Cargo Enterprises. We also find that Mumbai Customs has not recorded any statement from the Customs Broker viz., Shri M.R. Naresh Babu 'F' card holder. The Ld. Advocate relying on the decision rendered by the Hon'ble High Court of Delhi in the case of Ashiana Cargo Services Vs. Commissioner of Customs (I&G) [2014 (302) ELT 161 (Del.)] has pleaded that Customs Broker had no knowledge of illegal acts of M/s. A.P. Cargo Enterprises, Mumbai and investigation conducted has not proved anything guilty on the part of the appellant.
18. We find that the Customs Broker was first prohibited vide prohibition order No. 33/2017-18 dated 12.09.2017 by the Mumbai Customs which was continued by another order No. 46/2017-18 dated 10.11.2017. On the basis of the offence report received from the Mumbai Customs, Chennai Customs has issued the suspension order of the Customs Broker under Regulation 19(1) of CBLR, 2013, which was followed by revocation of the Licence by order dated 01.06.2018. Thus, the Customs Broker was out of business since September 2017 for his various acts of omission and 18 C/40642/2023 commission. The broker must have suffered enough financially and also loss of his business. The punishment must be proportional to the gravity in the nature of the infraction by the Customs Broker as held by the Hon'ble High Court of Delhi in the case of Ashiana Cargo Services Vs. Commissioner of Customs (I&G) [2014 (302) ELT 161 (Del.)]. Considering the fact that the Broker was out of business for more than 6 years, we order for re-issuance of the Licence to the appellant subject to fulfilment of the procedural requirements for issue of the Customs Broker Licence. But, we do not interfere with the imposition of penalty or appropriation of security furnished.
19. In view of the aforesaid discussions, the impugned order dated 01.06.2018 of the Commissioner of Customs, Chennai is partly modified to set aside the revocation of Licence, but, upholding the imposition of fine and forfeiture of security.
20. Thus, the appeal is partly allowed in the above terms.
(Order pronounced in open court on 14.06.2024)
Sd/- Sd/-
(VASA SESHAGIRI RAO) (SULEKHA BEEVI C.S.)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
MK