Shyam Singh Vs Commissioner (CESTAT Delhi)
CESTAT Delhi held that imposition of harsh punishment of revocation of Customs Broker Licence in absence of any active or passive facilitation in mis-declaration and undervaluation of imported goods unjustified.
Facts- The present appeal has been preferred by the appellant (Customs Broker) against OIO whereby the the Customs Broker License of the appellant was revoked, the security deposit was forfeited and penalty of Rs. 50,000/- was imposed.
Notably, the matter was adjudicated by the Commissioner of Customs and relying on the voluntary statement made by the appellant under Section 108 of the Act concluded that CB did not verify the value of the goods before filing the subject bills of entry, he aided the importer in the undervalued import and thereby led to the attempt to importation of mis-declared / overvalued goods and therefore fails to comply with the obligations cast upon him under the provisions of CBLR, 2018. The Adjudicating Authority specifically observed that the Customs Broker with malafide intention and knowingly abetted illegal import of the consignments involving gross mis-declaration and undervaluation.
Conclusion- The main and substantial allegation against the appellant is that he had sublet his licence for monetary consideration. Having upheld the subletting of the licence by the appellant we have consequently upheld the other violations under regulation 10 (a), (n), (d) and (e) CBLR, 2018 as after submitting the licence the appellant was in no manner in control of the transaction and any actions thereof and therefore had no knowledge of either the importer firms or its Proprietor or the KYC documents and hence could not have discharged his further obligations under the Regulations.
Held that there was no active or passive role of the appellant and no aggravating circumstances have been pointed out by the department that would justify the infraction to be as grave. The imposition of the punishment of revocation of the licence in that situation is not justifiable as the gravity of the infractions alleged cannot be said to be so serious so as to warrant such a grave and harsh punishment which would mean that his licence will be permanently inoperative for all times to come. Repeatedly, it has been emphasised by the Tribunal as well as by superior Courts that penalty as that of revocation of license cannot be imposed upon the CHA in absence of any active or passive facilitation, which is not the case in so far as the appellant is concerned.
FULL TEXT OF THE CESTAT DELHI ORDER
1. Challenge in this appeal is to the Order-in-Original No. 64/ZR/Policy/2022 dated 16.11.2022 whereby the Customs Broker License of the appellant was revoked, the security deposit was forfeited and penalty of Rs. 50,000/- was imposed.
2. The appellant has been issued Customs Broker License in the year, 2010 by the Commissioner of Customs (Airport & General), New Delhi, which is valid upto 22.11.2029. The letter dated 25.02.2022 was issued by the Additional Director, Directorate of Revenue Intelligence (DRI), Delhi Zonal Unit (DZU) regardingviolations committed by various Customs Brokers, namely M/s Sanjeev Kumar, M/s Expert Cargo Movers, M/s Anurag Tiwari, M/s Anubhav Cargo Movers, M/s Phenomenal Logistics and Shyam Singh, the appellant herein, in relation to gross mis-declaration and undervaluation in import of electronic goods by various importers, where the value of the imported goods declared before Customs was roughly 5% of the actual value of the goods. In fact, on many occasions, the declared value of the goods imported from Hong Kong was less than even the freight amount and it was admitted by the accused that the under-declared portion of the value of the goods including the prepaid freight was remitted abroad through hawala and non-banking channel.
3. The statement of various Proprietors of the Customs Broker was recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as the Act). Sh. Sanjeev Kumar in his voluntary statement dated 18.10.2021 accepted that the imported goods were highly undervalued and that he had used the Customs Broker Licenses of the above referred CHAs for clearing such undervalued and mis-declared import in the names of different proxy firm owned and controlled by one Zakir Khan. Sh. Sanjeev Kumar was arrested on 19.10.2021 and soon thereafter detention order dated 26.11.2021 was passed against him under COFEPOSA.
4. The statement of the appellant was also recorded under Section 108 of the Act on 15.12.2021, the relevant parasof the same are quoted below:-
