HIM LOGISTICS PVT. LTD. Vs. COMMISSIONER OF CUSTOMS, NEW DELHI
LAWS(CE)-2015-9-11
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on September 11,2015

Him Logistics Pvt. Ltd. Appellant
VERSUS
COMMISSIONER OF CUSTOMS, NEW DELHI Respondents


Referred Judgements :-

INDOWIND ENERGY LTD. V/S. WESCARE (INDIA) LTD. & ANOTHER [REFERRED TO]
N C SINGHA AND SONS VS. UNION OF INDIA [REFERRED TO]
EAST WEST FREIGHT CARRIERS PRIVATE LIMITED VS. COLLECTOR OF CUSTOMS MADRAS [REFERRED TO]


JUDGEMENT

R.K.SINGH,MEMBER (T) - (1.)The appeal has been filed against Order -in -Original dated 10 -4 -2015 in terms of which Commissioner of Customs, New Delhi under Rule 19(2) of the Customs Broker Licencing Regulations, 2013 (CBLR, 2013) confirmed the suspension of the appellant's customs brokers licence No. 7/2004, which was suspended vide order dated 20 -3 -2015. The facts of the case briefly stated are as under: -
Directorate of Revenue Intelligence (DRI) undertook investigation relating to exports of floor coverings by 21 exporters under nearly 266 shipping bills. The investigation revealed that the goods were not only mis -declared but were also highly over -valued to avail of undue benefits of Duty Draw Back and Focus Product Schemes. Investigation further revealed that several exporters were nonexistent and the Import Export (IE) codes were obtained using identity of persons who were not actually exporters. Investigation into the role of customs brokers was also undertaken and DRI informed the Commissioner of Customs that Mr. Prakash Sharma, Director of Him Logistics Pvt. Ltd. (HLPL) met all the exporters who had accompanied the middleman Mr. Amit Arora and one of the exporters also stated that Mr. Prakash Sharma determined the classification of the goods which was found to be incorrect. The investigation also revealed that employees of the appellant were handling clearance of the impugned export consignments at ICD, Patparganj and these employees also had a role in manipulation of the market enquiry to ascertain market value thereof. Mr. Prakash Sharma, Director of the appellant in his statement admitted that he had not verified antecedents of any of the exporters and had not met the proprietors/directors of the exporting firms. He also admitted that the bills for clearance of shipping bills were raised by HLPL and the payments were received in HLPL's account. The appellant (HLPL) was charged with the violation of Regulations 11(a), 11(d), 11(J), 11(m) and 11(n) of CBLR, 2013. The Commissioner of Customs after taking into account the evidence on record and having regard to the fact that two of the directors of HLPL, were also directors in M/s. HLPL Global Logistics Pvt. Ltd., the payments had been received by the appellant in respect of some of the clearances made by the exporting firms, that the addresses of HLPL and HLPL Global Logistics Pvt. Ltd. were the same and during investigation Mr. Prakash Sharma appeared as a coordinator of the group companies (HLPL and HLPL Global Logistics Pvt. Ltd.), held that prima facie Mr. Prakash Sharma was the mastermind in the case and therefore liable for action under Rule 19(2) of CBLR, 2013 for his misconduct. Accordingly, vide the impugned order, he confirmed suspension of customs broker licence of the appellant.

(2.)Ld. Advocate for the appellant contended that (i) M/s. HLPL (the appellant) and M/s. HLPL Global Logistics Pvt. Ltd. are two different legal persons and Mr. Prakash Sharma is not a director in HLPL Global Logistics Pvt. Ltd., (ii) Appellant did not file any shipping bill at all in respect of the impugned exports, (iii) It was not the customs broker in respect of any of the impugned exports and therefore question of violation of CBLR, 2013 by the appellant does not arise, (iv) No payment was received by the appellant in respect of the exports which were investigated, (v) Being a sister concern of HLPL Global Logistics Pvt. Ltd. is no ground to suspend appellant's licence for any wrong doing by HLPL Global Logistics Pvt. Ltd. and the Commissioner has not given any ground as to how the two are sister concerns and what is meant by sister concern, (vi) It is irrelevant that two of the Directors of M/s. HLPL Global Logistics Pvt. Ltd. are also the directors of the appellant, (vii) Operating from the same address as that of M/s. HLPL Global Logistics Pvt. Ltd. is of no consequence as each company is a separate legal person, (vii) Shri Prakash Sharma is not the customs broker and therefore his misconduct cannot be a ground for suspension of licence of the appellant, (viii) The timelines prescribed under C.B.E. & C. Circular No. , dated 8 -4 -2010 have not been adhered to. The appellant referred to Calcutta High Court judgment in the case of N.C. Singha & Sons v/s. Union of India [ : 1998 (104) E.L.T. 11 (Cal.)] to advance the proposition that in the absence of spelling out any immediate action required to be taken, suspension is not warranted. He further referred to Madras High Court judgment in the case of East West Freight Carrier P. Ltd. v/s. Collector [ : 1995 (77) E.L.T. 79 (Mad.)] for the proposition that suspension of the licence is to be resorted to only where immediate action is considered necessary.
(3.)Ld. Departmental Representative, on the other hand, stated that Shri Prakash Sharma was the master mind in this case and the payments from several of the exporters were received by the appellant and therefore the appellant was certainly guilty of misconduct as per CBLR, 2013. He also stated that the common directors of the appellant and M/s. HLPL Global Logistics Pvt. Ltd. live at the same address and operate from the same premises which shows they are in collusion with each other.
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