COMMISSIONER OF CUSTOMS AIRPORT AND GENERAL vs M/S ICS CARGO
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th October, 2023
+ CUSAA 51/2023
COMMISSIONER OF CUSTOMS AIRPORT AND
GENERAL …… Appellant
Through: Mr. Anish Roy, Sr. Standing
Counsel (CBIC)
versus
M/S ICS CARGO
.Respondent
Through: Mr. Prabhat Kumar and Mr.
Karan Kanwal, Advs.
CORAM:
HON’BLE MR. JUSTICE YASHWANT VARMA
HON’BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
1. This appeal has been preferred by the Commissioner of
Customs1 under Section 130 of the Customs Act, 19622 assailing
impugned order dated 06 January 2023 passed by the Customs, Excise
and Service Tax Appellate Tribunal, Principal Bench, New Delhi3,
whereby the order dated 13 November 2019 revoking the license of
the respondent/CB/CHA4, was set aside.
1 Appellant
2 Act
3 CESTAT
4 Customs Broker(CB)/Customs House Agent: these terms used interchangeably in this judgment
BRIEF FACTS:
2. Briefly stated, the respondent was issued a Customs Broker
License bearing No. R-037/97 valid upto 28 November 2026 by the
appellant and the respondent was registered with the Customs at
Mumbai, Ludhiana/Amritsar, Visakhapatnam, Noida and Kandla. It is
brought out that the DRI5 conducted search operations on 12 April
2017 and 13 April 2017 at the premises of several importer
companies viz. M/s. Yuri Impex Pvt. Ltd., M/s. Yuri International and
M/s. Ray Exim India Pvt. Ltd., companies which were being run by
one Mr. Yusuf Pardawala. The raids were conducted in relation to the
import of various power tools from China, which were imported
through several ports by the importers and allegedly undervalued.
During the course of investigation, the statements of Mr. Yusuf
Pardawala as also one Mr. Sidharth Sharma were recorded under
Section 108 of the Act and certain documents viz, various invoices
and packing lists besides emails of the importers were seized
unraveling the modus operandi adopted by the importers. During the
course of investigation, it was also revealed that there were 5
containers containing the goods which were undervalued, four at
Navasehara and one at Sea Port, Kolkata, which were also seized.
3. It is the case of the appellant further that during the course of
investigation, statement of one Mr. Suresh Kumar Aggarwal, a partner
of the respondent/CB/CHA was recorded on 15 January 2018 and 22
January 2018. In so far as the respondent is concerned it is alleged
that the respondent had facilitated clearance work for certain imported
goods on commission basis, without verifying the IECs numbers used
for the imports and having due knowledge that the mastermind was
Mr. Yusuf Pardawala, who was the real beneficiary or the beneficial
5 Directorate of Revenue Intelligence
owner. A SCN6 No. 13/2019 dated 22 May 2019 was issued to the
respondent proposing that the clearance of imported goods at the
Customs Ports by the respondent was in violation of various
provisions of the Customs Broker License Regulations, 20187. The
SCN was eventually confirmed vide Order-in-Original No.111/2019
dated 13 November 2019 on the grounds of violation of regulation
10(a), 10(d) and 10(n) of the CBLR, and consequently, the license of
the respondent was revoked invoking powers under regulation 14 and
17(7) of the CBLR. Further, security deposit of Rs. one lac ten
thousand made by the respondent was also forfeited and penalty was
imposed.
4. The impugned order dated 13 November 2019 was assailed
before the learned CESTAT, which, on the basis of the pleadings and
arguments addressed before it, framed the following issues:
6 Show Cause Notice
7 CBLR
(i) Whether the timeline of Regulation 16 and 17 of Customs
Broker License Regulations (CBLR), 2018 was mandatory to be
followed while revoking the license and the order of revocation of
license of appellant, Customs Broker (CB) is barred by time as the
same has not been followed.
(ii) Whether once the order suspending the license of
CHA/appellant was revoked, the proceedings of revocation of
license under Regulation 17 of CBLR, 2018 could not be initiated?
(iii) Whether the appellant has violated Regulation 10(a), 10(d)
and 10(n) of CBLR, 2018?
5. Shorn of unnecessary details, the learned CESTAT decided the
first two issues against the respondent/CB, which are not in challenge
in the present matter. Suffice it to state that the learned CESTAT
referred to Regulation No.14, 168 & 179 of the CBLR as also Circular
bearing No. 9/10-Customs dated 08 April 2010 inter alia relying on
the expression offence report10 and held that the impugned SCN was
issued within the mandatory period of 90 days from receipt of the the
offence report and, therefore, not time barred. It was further held
that mere suspension of licence and later its revocation vide order
dated 22 April, 2019 under Regulation 16 of the CBLR did not
preclude the Commissioner (Appeal) from conducting an inquiry
against the CB/CHA in terms of the powers under Regulation 14 and
17 of the CBLR for the reason that an action under Regulation 16 is
immediate in nature depending upon the seriousness and gravity of the
alleged offence whereas Regulation 17 prescribes a complete
procedure for hearing the party concerned.
6. Coming to the last issue, learned CESTAT on appreciation of
the evidence brought on record, found that the case of the appellant
that respondent/CHA was in violation of regulation 10(a), 10(d) and
10(n) of CBLR was not made out, and consequently the impugned
order as well as the penalty imposed were set aside.
8Regulation 16 vests powers with the Commissioner or Commissioner of Customs to suspend a
license of a Custom Broker where an inquiry against such Custom Broker is pending or
contemplated.
9Regulation 17 provides the procedure for revoking license or imposing penalty including issuance
of Show Cause Notice, hearing, recording of evidence and final decision in a time bound manner.
10 Explanation to Regulation 17 of CBLR defined offence report as follows:
Offence report for the purposes of this regulation means a summary of investigation and prima
facie framing of charges into the allegation of acts of commission or omission of the Customs
Broker or a F card holder or a G card holder, as the case may be, under these regulations
thereunder which would render him unfit to transact business under these regulations.
GROUNDS OF APPEAL:
7. The impugned order dated 06 January 2023 passed by the
learned CESTAT has been assailed inter alia on the ground that the
impugned order is arbitrary, perverse and violative in vestige fairness
inasmuch as it ignored the fact that the retraction of admitted
statement without any evidence of threat or coercion was not
sustainable; and that the learned CESTAT failed to appreciate that the
respondent/CHA was under the obligation to inform the department
about misuse of the IECs being done by the importers and that it also
overlooked that the evidence brought on the record clearly raised an
inference that the respondent/CHA was in knowledge of the modus
operandi being adopted by the importers regarding the undervaluation
of the imported goods. In the alternative it is submitted that although
there was no direct evidence so as to bring out connivance with regard
to undervaluation on the part of the CHA, nonetheless CHA was
liable to be prosecuted for imposition of penalty under Section 114AA
of the Act.
8. On filing of the present appeal, advance notice was issued to the
respondent/CHA and a short affidavit is filed by Mr. Suresh Kumar
Aggarwal, partner of the firm and needless to state that the impugned
order in so far as it determined issue No. 3 in its favour is supported.
ANALYSIS AND DECISION:
9. Having heard the learned counsels for the parties and on perusal
of the record, at the outset we find no merit in the present appeal. The
reasons are not far to seek. Section 130 of the Act provides as follows:
130. Appeal to High Court.(1) An appeal shall lie to the High
Court from every order passed in appeal by the Appellate Tribunal
on or after the 1st day of July, 2003 (not being an order relating,
among other things, to the determination of any question having a
relation to the rate of duty of customs or to the value of goods for
the purposes of assessment), if the High Court is satisfied that the
case involves a substantial question of law.
(2) The [Principal Commissioner of Customs or Commissioner of
Customs] or the other party aggrieved by any order passed by the
Appellate Tribunal may file an appeal to the High Court and such
appeal under this sub-section shall be
(a) filed within one hundred and eighty days from the date on
which the order appealed against is received by the Principal
Commissioner of Customs or the other party;
(b) accompanied by a fee of two hundred rupees where such
appeal is filed by the other party;
(c) in the form of a memorandum of appeal precisely stating
therein the substantial question of law involved.
(2.A) The High Court may admit an appeal after the expiry of the
period of one hundred and eighty days referred to in clause (a) of
sub-section (2), if it is satisfied that there was sufficient cause for
not filing the same within that period.
(3) Where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated,
and the respondents shall, at the hearing of the appeal, be allowed
to argue that the case does not involve such question:
PROVIDED that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any other substantial question
of law not formulated by it, if it is satisfied that the case involves
such question.
(5) The High Court shall decide the question of law so formulated
and deliver such judgment thereon containing the grounds on
which such decisions is founded and may award such cost as it
deems fit.
(6) The High Court may determine any issue which
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal,
by reason of a decision on such question of law as is referred
to in sub-section (1).
(7) When an appeal has been filed before the High Court, it shall
be heard by a bench of not less than two Judges of the High Court,
and shall be decided in accordance with the opinion of such Judges
or of the majority, if any, of such Judges.
(8) Where there is no such majority, the Judges shall state the point
of law upon which they differ and the case shall, then, be heard
upon that point only by one or more of the other Judges of the High
Court and such point shall be decided according to the opinion of
the majority of the Judges who have heard the case including those
who first heard it.
(9) Save as otherwise provided in this Act, the provisions of the
Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to
the High Court shall, as far as may be, apply in the case of appeals
under this section.
10. A careful perusal of the aforesaid Section would show that an
appeal lies to the High Court only when the impugned decision/order
involves a substantial question of law. Suffice it to state that this
Court cannot re-appreciate the evidence brought on the record in the
proceedings conducted before the Adjudicating Authority as well the
CESTAT and re-appreciate the same so as to came to a different
finding unless the appreciation of evidence is perverse or manifestly
erroneous and/or is contrary to the law. In the case of Chandna
Impex Pvt. Ltd. v. Commissioner of Customs New Delhi11, the
Supreme Court examined as to what constitutes a question of law in
the context of Section 130 of the Act and approved its earlier decision
in the case of Hero Vinoth v. Seshammal [(2006) 5 SCC 545] as also
the Constitution Bench decision of this Court in Sir Chunilal v. Mehta
& Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. [AIR 1962 SC 1314] also
a number of other decisions on the point. The Supreme Court culled
out three principles for determining whether a question of law raised
in a case is substantial, which are as under:
11 [2011] 7 SCC 289]
24. (iii) The general rule is that the High Court will not
interfere with the concurrent findings of the courts below.
But it is not an absolute rule. Some of the well-recognised
exceptions are where (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. When we refer to
decision based on no evidence”, it not only refers to cases
where there is a total dearth of evidence, but also refers to
any case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.
11. Tested on the touchstone of the aforesaid legal principles,
reverting back to the instant matter, it would be relevant to extract
Regulation 10(a) of the CBLR, which reads as follows:
Sec 10 (a) of the CBLR 2018 states that obtain an authorisation
from each of the companies, firms or individuals by whom he is for
the time being employed as a Customs Broker and produce such
authorization whenever required by the Deputy Commissioner of
Customs or Assistant Commissioner of Customs, as the case may
be;
12. On the said issue, learned CESTAT came to the following
conclusions:
8.1.1 We observe that the Bills of Entry as were filed by the
appellant are in the names of such companies which are controlled
by Shri Sidharth Sharma and have a valid IEC. There is no denial
of Shri Siddharth Sharma that the impugned goods have been
imported in name of his companies. Though there is an admission
of Shri Sidharth Sharma that with respect to the power tools as
have been imported by his companies, Shri Yusuf Pardawala was
the beneficial importer but he simultaneously has accepted that the
shipment of power tools has been imported in the name of his firm
M/s. Maggie Marketing Pvt. Ltd. and that he was dealing with the
beneficial importer for getting a 2% commission for allowing him
to use the name of his firm i.e. M/s. Maggie Marketing Pvt. Ltd.
There is no denial of the owner of the importing companies, Shri
Sidharth Sharma that he had not authorized M/s. lCS Cargo, the
CHA, to facilitate the clearance of the imports made by those
companies. It is not the case of the department that the appellant
failed to produce the said authorization to the competent officer.
8.1.2 We further observe that Shri Yusuf Pardawala in his
statement has acknowledged that Shri Sidharth Sharma offered his
companies for import of various goods of Shri Yusuf Pardawala on
commission basis. Shri Yusuf Pardawala had assured Shri Sidharth
Sharma to give him continuous work in the form of future
shipments of power tools/grinding wheels on 2% commission
basis. Thus it is clear that appellant/Customs Broker has facilitated
customs clearance in the name of such companies which were
having valid lEC of goods imported by the owner of these
companies. He had facilitated clearance of goods imported by
companies, Shri Sidharth Sharma who only had duly authorized the
appellant for the same. Hence, it is clear that appellant has valit
authorization to act on behalf of the companies in whose names
appellant filed the Bills of Entry. The alleged arrangement
apparently and admittedly is between the importer and the
beneficial importer for some commission to the importing firm, the
appellant Customs Broker cannot be held liable for the same.
However for alleged under valuation of imported goods the
importer as well as the beneficial importer both can be prosecuted
by the department. There is no evidence on record nor is the
allegation that appellant was making any wrongful gain.
Accordingly, we do not find any violation of regulation 10(a) as
has been alleged against the appellant.
13. Likewise, regulation 10(d) is extracted as follows:
Regulation 10(d).
10 (d) advise his client to comply with the provisions of the
Act, other allied Acts and the rules and regulations thereof,
and in case of noncompliance, shall bring the matter to the
notice of the Deputy Commissioner of Customs or Assistant
Commissioner of Customs, as the case may be;
14. On the said aspect, it has been held by the learned CESTAT as
follows:
8.2.1 The department has alleged that Shri Yusuf Pardawala was
engaged in import of the subject goods powertools/Grinding
wheels etc. from Chinese based firm M/s.. Dongcheng. Supplier
sent the original invoice bearing actual value of the said goods
directly to Sh. Yusuf Pardawala, however, he used to submit the
undervalued invoices to the Indian Customs. In same modus
operandi, he also had used IEC of other importer firms viz. M/s.
Maggie Marketing Pvt. Ltd., M/s. Safebot Technologies, M/s.
Honeywell Tradelinks Pvt. Ltd and Mis. Emrick Distributors
(actually owned by Shri Sidharth Sharma) to clear his imported
consignments. It is alleged against the appellant that despite being
aware of the facts of mis-utilisation of IEC, CHA Instead of
intimating the same to the customs department, himself got
connived with Shri Yusuf Pardawala to facilitate the customs
clearance work for subject goods with malafide intention to evade
customs duty. And also, after clearance of the consignments, the
same were dispatched by him to the godowns of Mr. Yusuf
Pardawala. Hence, it appeared that the CB had failed to bring the
matter to the notice of the DC/AC of Customs/ thereby violating
Regulation 10(d) of CBLR/ 2018 (read with erstwhile Regulation
11(d) of CBLR, 2013).
8.2.2 As already observed and held above that appellant was
assisting the import clearance for those firms only in whose names
the goods were imported. The Director of those firms has
admittedly authorized the appellant to file the Bills of Entry in the
names of his firms and to assist the clearance of imported goods.
Though Shri Sidharth Sharma stated that appellant used to receive
documents with respect to the import of power tools directly from
Shri Yusuf Pardawala prior filing the Bills of Entry for the same,
however/ in the companies of Shri Sidharth Sharma and it has been
relied upon by the adjudicating authority. But we observe that the
cross-examination of Shri Sidharth Sharma and the statement of
Shri Pankaj Singh has totally been ignored by the adjudicating
authority.
8.2.3 Shri Sidharth Sharma, in his cross-examination dated
10.08.2019, has specifically stated that he used to send his staff
along with the import documents to ICS Cargo after informing the
same telephonically to Shri Suresh K. Aggrawal/the appellant. This
particular deposition falsifies the statement that the import
documents used to be received by the appellant through Shri Yusuf
Pardawala directly. Shri Sidharth Sharma has further deposed,
while being cross-examined, that he only used to send his own
transport for taking delivery of goods. This deposition falsifies that
appellant used to directly deliver the imported goods to Shri Yusuf
Pardawala premises. The subsequent deposition during cross
examination that all goods imported in his companies belong to
him (Shri Sidharth Sharma) and that he only used to place orders
on his foreign suppliers after importing those goods and he only
used to sell the same to Shri Yusuf Pardawala, later being a big
business entities falsify entire allegations and findings against the
appellant.
8.2.4 Shri Sidharth Sharma has specifically acknowledged, while
being cross-examined, that his earlier statements were taken under
coercion hence stands rebutted in the light of his crossexamination.
This deposition of Shri Sidharth Sharma help us to conclude that
the confirmation of allegations against the appellant based merely
on the statement in chief of Shri Sidharth Sharma which has been
rebutted by him during his cross-examination is absolutely wrong.
There appears nothing on record to prove that the appellant was In
direct conversation with Shri Yusuf Pardawala and accordingly,
there arises no reason with the appellant to advice Shri Sidharth
Sharma to not to let his companies name be used by Shri Yusuf
Pardawala while importing power tools. When the importing firms
having valid IEC was making profit on commission basis, under an
arrangement with another big businessman while importing goods
in their names.
8.2.5 We further observe that the above findings stands
corroborated from the deposition of Shri Pankaj Singh alias Banti
who has acknowledged that he was doing freight forwarding work
for all consignments filed in M/s. Yuri Impex Pvt. Ltd., M/s. Yuri
International, M/s. Ray Exim India Pvt. Ltd., M/s. Maggie
Marketing Pvt. Ltd., M/s. Impex Steel & Bearing Co., M/s.
Safebot Technologies Pvt. Ltd. and M/s. Honeywell Tradelinks
Pvt. Ltd. All the documents as that of bill of lading related to the
consignments of power tools/cutting wheels filed in the above said
companies were handed over to him by Shri Yusuf Pardawal
himself and on the basis of that bill of lading he as a freight
forwarder used to get a delivery order issued from shipping line
and thereafter the consignment used to be handed over to Suresh K.
Aggrawal who as Customs Broker, used to file Bills of Entry for
the respective consignments. This particular statement demolishes
the entire case of the department that it was Customs Broker who
had connived with Shri Yusuf Pardawala and Shri Sidharth Sharma
to facilitate the import clearance in the name of the companies
owned by Shri Sidharth Sharma but for Shri Yusuf Pardawala.
8.2.6 In the given circumstance, we do not find any reason with
the appellant to be aware of the arrangement between Shri Sidharth
Sharma and Shri Yusuf Pardawala and Shri Pankaj Singh and as
such he had no reason to advice in this respect to the importer
about provisions of the applicable acts, rules and regulations. Once
nothing was to his notice there was no reason with the appellant to
bring anything to the notice of the competent officer as was the
requirement of regulation 10(d). Hence we hold that violation of
10(d) of CBLR, 2018 has wrongly been confirmed against the
appellant.
15. In the same vein, it would be relevant to extract Regulation
10(n) which reads as follows:
Regulation 10(n).
10(n) verify correctness of Importer Exporter Code (IEC)
number, Goods and Services Tax Identification Number
(GSTIN), identity of his client and functioning of his client at
the declared address by using reliable, independent, authentic
documents, data or information;
16. In this regard, the decision of the learned CESTAT goes as
under:
8.3.1 We observe that there is no allegation of the department
that the IEC (Importer Exporter Code) for the importers in whose
name the Bills of Entry were filed by appellant/CHA were
incorrect. The goods and service tax identification number GSTIN
has also not been admitted to be the correct number of the said
importers. Even the importers are not denied to be functioning at
the declared addresses. Once the IEC and GSTIN is found to have
been genuine even the importers were found existing at the
declared addresses, mere allegation that some other person was
importing goods in the name of the importers whose names were
mentioned in the Bills of Entry does not render the identity of the
importer as doubtful especially when there is an apparent
arrangement, with mutual consent between the importer and the
said other person, the beneficial owner of the imported goods.
8.3.2 There has been an amendment in Section 2(26) of the
Customs Act, 1962 which defines importer. After the said
amendment not only the owner of the imported goods is importer
but even a beneficial owner of such goods is also defined as
importer. From the facts and the circumstances above, we observe
Shri Yusuf Pardawala would have been the beneficial owner of the
goods. Hence, he equally is an importer but the goods owned by
him have been imported by a validly existing importing firm. The
appellant herein was transacting the business of those validly
existing firms that too under the authority of the owner of said
companies for getting clearances of those goods. Hence, we hold
that the allegations about the wrong identity of the client of
appellant are absolutely baseless. Thus, we hold that
appellant/CHA had no reason to declare that Shri Sidharth Sharma
was not the importer. Otherwise also when statute itself does not
distinguish between the owner of the goods and person who is the
importer, CHA has no reason nor any necessity to take a different
position and to declare the same to the competent authority. As
such we do not find any violation of Regulation 10(n) of CBLR,
2018 by the appellant.
8.3.3 We further observe that there is no evidence on record to
prove that the appellant had any personal or pecuniary interest in
the impugned imports or that the imports were for any other
personal benefit of the appellant. From the above discussion about
the documents and information of the importer, it is crystal clear
that the CHA herein had played his role diligently. The only
allegation otherwise about the imported goods is that of under
valuation thereof. Appellant is not a valuation expert and had
played no role in the under valuation of the goods. To our opinion
appellant acted purely on the basis of documents as that of
invoice/purchase orders supplied by the importers. Sole allegation
that the documents with respect to import of power tools were
directly supplied by Shri Yusuf Pardawala to the appellant are
highly insufficient to be a cogent evidence of alleged connivance
of the appellant with either Shri Yusuf Pardawala or with Shri
Sidharth Sharma or with both. Otherwise also, this allegation stand
rebutted by the statement of Shri Pankaj Singh who acknowledged
to have received the documents from Yusuf Pardawala and he
delivered those to the appellant.
8.3.4 As already observed above that the cross examination of
Shri Sidharth Sharma has not been taken into consideration by the
adjudicating authority below. We hold that the Commissioner has
wrongly concluded that there is no evidence to rebut the veracity
the statement of Shri Sidharth Sharma. It is rather observed that
Shri Sidharth Sharma had submitted a letter dated 25.10.2017 on
behalf of M/s. Maggie Marketing Pvt. Ltd. retracting his earlier
statements but the order under challenge is miserably silent to the
same. Mention of said retraction is even found recorded in
subsequent statement of Shri Sidharth Sharma dated 08.11.2017,
wherein, he acknowledged his retraction and reiterated that his
earlier statements were given under pressure. Thus, we hold that
the statement which has been relied upon by the authorities to
confirm allegations against appellant while revoking his license
was actually a retracted version. As already observed above the
cross- examination of the said witness, fully supports the case of
appellant. The silence to retraction and cross-examination of
witness is sufficient to set aside the order of revoking license and
imposing penalty. We found no evidence as that of placement of
purchase order by the appellant and of foreign remittances in
favour of the appellant etc. which might prove the alleged
connivance of the appellant. Thus, the findings of adjudicating
authority below are held to be based on presumptions and surmises
only. Even the Show Cause Notice as served upon the appellant is
based on third party evidence i.e. on the documents recovered from
premises of Shri Yusuf Pardawala.
8.3.5 We also observe that Commissioner (Appeals) has
committed an error while ignoring the most cogent part of the
statement of Shri Siddharth Sharma, wherein, he has specifically
acknowledged that payments and charges for clearance etc. were
paid to the appellant from the accounts of the concerned companies
in whose names the Bills of Entry were filed. The another cogent
deposition absolving entire liability of the appellant is that the
clearance work of the import consignments of power bills and
other related items in his company was handled by Shri Pankaj
Singh alias Banti who did not work for M/s. ICS Cargo rather was
the Director of a freight forwarding company in the name of M/s.
JMD Clearing and Forwarding Pvt. Ltd. The said deposition has
been corroborated by Shri Pankaj Singh himself. We do not find
any evidence on record to prove that transportation of the goods to
the premises of Shri Yousuf Pardawala were facilitated by the
appellant/CB. On the contrary, there is sufficient admission of Shri
Sidharth Sharma, while being cross-examined; that he only used to
arrange his vehicles for transporting the imported goods to
respective places. Shri Sidharth Sharma has willingly provided his
IEC on M/s. Maggie Marketing Pvt. Ltd. for use of imports to Shri
Yusuf Pardawala and in fact, till the date of imports no remittances
used to be sent by Shri Yusuf Pardawala to Shri Sidharth Sharma
because Shri Yusuf Pardawala actually used to purchase those
shipments on credit basis and used to make the payments of those
imported goods in favour of M/s. Maggie Marketing Pvt. Ltd. of
Shri Sidharth Sharma and it was thereafter that Shri Siddharth
Sharma used to make the remittances for those shipments.
Apparently and admittedly, no Bill of Entry has been filed by
appellant in name of any company of Shri Yusuf Pardawala.
8.3.6 These particular admissions which received due
corroboration, are sufficient for us to hold that there was no role of
appellant/CB in the mutual arrangement between Shri Sidharth
Shama and Mr. Yusuf Pardawala. In fact it stands proved in record
that the arrangement was never brought to the notice of appellant.
Hence, there was nothing with appellant to hide from the
department. Mere taking certain documents of importer from a
person appearing on behalf of the importer who is otherwise
validly existing at the declared address and having valid IEC and
GSTIN is highly insufficient to hold that CHA has failed in
performing his duties of Customs House Agent deliberately.
17. On a careful perusal of the reasons assigned by the learned
CESTAT and extracted above, it is evident that the learned CESTAT
conducted a meticulous exercise to examine and appreciate the
evidence on the record and came to a categorical finding that the
respondent/CHA was not guilty of non-performance of any of the
statutory duties cast upon it. It is evidently brought out that there was
a private arrangement between the two importers for which the
respondent/CHA facilitated customs clearance in the name of
companies, having valid IECs for the goods imported by the owners of
the companies involved; and that the respondent/CHA had been duly
authorized in this regard by Mr. Sidharth Sharma. There was proper
verification on the part of the respondent/CHA with regard to
genuineness of the IEC as also GSTIN12 and mere allegations that
some other person was importing goods in the name of the importers,
whose names were mentioned in the Bills of Entry, did not render the
identity of the importer doubtful especially when there was apparently
an arrangement with mutual consent of the importer and the beneficial
owner and in the said circumstances there was no basis for the
Adjudicating Authorities to pass the impugned order thereby
suspending the license of the CHA based on the statements of the
importers, which were otherwise also retracted. The findings by the
learned CESTAT assume legally correct approach in the teeth of the
deposition of Mr. Sidharth Sharma, who testified that the payments
and charges for clearance etc. were paid to the respondent/custom
broker from the accounts of the concerned companies in whose names
12 Goods and Services Tax Identification Number
the Bills of Entries were filed, coupled with the fact that no Bill of
Entry was filed by the respondent/CHA in the name of any company
of Mr. Yusuf Pardawala, which task evidently had been handled by
one Pankaj Singh @ Bunty, Director of a freight company in the name
of JMD Clearing and Forwarding Private Limited.
18. In view of the foregoing discussion, we find that the learned
CESTAT neither committed any patent illegality nor any manifest
error in appreciating the evidence on the record. The instant appeal
fails to raise any question of law. Hence, the present appeal is
dismissed in limine.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
October 13, 2023
Sadique