AI Structured Summary
Not yet generated for this judgment
Judgment
R. Muralidhar, Member (J)
The Appellant is carrying the work as Customs Broker. On the ground that one of his employees, Shri Sanjeev Kumar Jha, holder of temporary H Pass No. HP-179/09 was involved in some illegal activities, the Show Cause Notice was issued to the present Appellant on the ground that the Appellant has violated Regulation 19(8) of CHLR, 2004 (Now Regulation 13(12) of CBLR, 2018). After due process, the Commissioner has imposed a penalty of Rs. 50,000/- and ordered for forfeiture of full amount of security deposit furnished by the Appellant. Being aggrieved, the Appellant is before the Tribunal.
The Learned Consultant submits that the proceedings were initiated on the basis of OIO No. KOL/CUS/AIRPORT/39/2018 dated 12/02/2018 which was in connection with the exports made by one exporter Marine Vission. This OIO was treated as Offence Report for issuing the present Show Cause Notice for contravention of Regulation 20(1). The Learned Consultant submits that Appellant neither undertook the clearance job for such exports nor was he connected to the exporter in any way. As a matter of fact, the Appellant was not even a noticee in the related OIO under reference. Therefore, this OIO cannot be made the basis for initiating the proceedings against the present Appellant. In that case, Shri Sanjeev Kumar Jha who has been given H-Pass by the present Appellant had acted on behalf of some other CHA as that CHA’s Representative and not as the Representative of the present Appellant. He submits that an Enquiry Officer was nominated in terms of CHLR, 2004 and he has submitted his Enquiry Report on 01/10/2018.
The first issue before the Enquiry Officer was as to whether the present Appellant M/s. S P Agency represented by proprietor Sri Santosh Choudhary, connived with Sri Santosh Jha and he has arranged for a “H- Pass” for his brother Sri Sanjeev Kumar Jha. Secondly as to why Sri Santosh Choudhary has not initiated any action against Sri. Sanjeev Kumar Jha.
The Enquiry Officer after conducting thorough enquiry noted that under the OIO dated 12/02/2018 under reference, no action was initiated against Sri Santosh Choudhary of S P Agency. This OIO also did not elaborate exact role played by Sri Sanjeev Kumar Jha. He also noted that against the allegation that Shri Santosh Choudhary, Proprietor of M/s. S P Agency did not take any action to cancel the H-Pass of Sanjeev Kumar Jha, factual details proved that on 14/09/2010, Sri Santosh Kumar Chaudhury has written a letter to the Deputy Commissioner (Customs) requesting him to cancel the H-Pass issued to Sanjeev Kumar Jha. The fact about submission of this letter dated 14/09/2010 was verified with the office record and was found to be correct. Based on the verification carried out, the Enquiry Officer dropped the proceedings against the present applicant.
However, the Principal Commissioner of Customs (the present Adjudicating Authority) after granting opportunities for Hearing to the Appellant, has held that the Customs Broker firm had failed to supervise the proper conduct of their employee in the transaction of business.
Accordingly, he passed the present order and imposed penalty of Rs. 50,000/- and also ordered for forfeiture of full amount of security deposit.
The Learned Consultant submits that the factual details clearly show that the Appellant was in no way connected with the alleged offence committed by Mr. Sanjeev Kumar Jha. He also relies on the findings of the Enquiry Officer.
The Learned AR reiterates the findings of the Adjudicating Authority and justifies the order passed by him.
I have gone through the Appeal papers and documentary evidence placed before me. The present proceedings are emanating from OIO No. 39/2018 dated 12/2/2018. As pointed out by the Learned Consultant, the present Appellant was not even a noticee in that proceeding.
A cursory glance of that proceedings shows that the main noticee was Marine Vission. The allegation was towards fraudulent claiming of Duty Drawback on the fraudulently exported consignments in which it was alleged that Sri Sanjeev Kumar Jha had assisted in such claims. While Sri Sanjeev Kumar Jha was a noticee and a penalty of Rs. 3 lakhs was imposed on him, no findings have been given towards his role in that particular case. Even otherwise, in the entire proceedings in that case, nothing has emerged to the effect that Sri Sanjeev Kumar Jha holder of H-Pass has acted on behalf of the present Appellant M/s. S P Agency. Since the present Appellant was not even a noticee in that case, the question of present Appellant having connived with Sri Sanjeev Kumar Jha in respect of the exports done by Marine Vission cannot be deduced by any stretch of imagination.
The present proceedings have been taken up on the specific charge that the Appellant had contravened Regulation 19(8) of CHLR, 2004 (now Regulation 13(12) of CBLR, 2018). The factual details as discussed above clarify that no case has been made out to the effect that Sri Sanjeev Kumar Jha has acted on behalf of the present Appellant.
Mere procurement of H-Card by S P Agency to facilitate the working of Sanjeev Kumar Jha cannot be the reason for the present proceedings. A person holding H-Card, if he acts for same third party without the knowledge of the CHA, in what way CHA would be able to control all the activities undertaken by the H-Card Holder is not known.
In the present case, against the allegation that the Appellant has not taken up any step to cancel the H-Card issued to Sri Sanjeev Kumar Jha, factually this allegation is proved to be erroneous as has been recorded by the Enquiry Officer.
All these factual details show that no case has been made out against the Customs Broker. Even the Enquiry Report of the Enquiry Officer after complete investigation, has absolved the Customs Broker.
In view of the foregoing, I set aside the impugned order imposing penalty of Rs. 50,000/- and forfeiture of full amount of security deposit furnished by the Customs Broker.
The Appellant should be granted refund of these amounts along with applicable interest within four weeks from the date of receipt of this Order.
The Appeal is disposed off thus.