Customs Appeal No. 52677 of 2018 (Arising out of Order-in-Original No. 42/MK/Policy/2018 dated 31.07.2018 passed by the Commissioner of Customs, New Delhi)

Decided On: 07.08.2019

Appellants: Jaiswal Import Cargo Services Limited Vs. Respondent: Commissioner of Customs, Airport & General

Hon'ble Judges/Coram:
C.L. Mahar, Member (T) and Rachna Gupta


Rachna Gupta, Member (J)

1. M/s. Jaiswal Import Cargo Services Limited, the appellant, is a Customs Broker with Shri Pawan Kumar Jaiswal as one of its Directors. Department observed the violation of Regulation 11(d) and (e) of CBLR, 2013 on the part of the appellant in a case of import of assorted birthday candles by M/s. Ess Enn Impex importer through M/s. S. Guha Sarkar & Co. Ltd. vide Bill of Entry No. 5222876 dated 11.05.2016. The Department after intercepting and examining the goods observed that the candles were described as sparkling flower candles. The central part thereof was found coated with brown coloured paste there upon. Department got it examined from Central Forensic Science Laboratory, (CFSL) New Delhi and from Petroleum and Explosives Safety Organisation (PESO). Based on the reports, the Department formed an opinion that the goods appeared to be classifiable under Chapter heading 3604 "fireworks, signalling flares, rain rockets, fog signals and other pyro-technic articles" whose import is restricted under the Foreign Trade Policy. Resultantly, a show cause notice No. 26/9 dated 02.02.2018 was served upon said importer, M/s. Guha Sarkar Co., their partner, the G-Card Holder and also upon the appellant proposing them to be held responsible for contravention of Regulations of CBLR, 2013 and proposing the revocation of their CB license with forfeiture of whole of the security submitted at the time of issue of their license.

Appellant was issued with the show cause notice after Department noticed that appellant's two consignments of identical product (assorted birthday candles) had earlier been cleared through G-Card holder, Sh. Kuber Nath Rai. In furtherance of said show cause notice, the Order-in-Original cum offence report dated 13.12.2017 was prepared. The Additional Commissioner of Customs (Exports TKD), New Delhi ordered to seize birthday candles of the impugned bill of entry on the ground of holding them to be mis-declared however allowed the redemption thereof. In addition, the penalty on M/s. Ess Enn Impex, the partners thereof, Shri Kuber Nath Rai, G-Card Holder and on Customs Broker M/s. S. Guha Sarkar & Co. and also upon the appellant was imposed.

On receipt of the said offence report, Commissioner of Customs, Airport and General vide Order No. 42 dated 31.07.2018 had revoked the Customs Broker Licence of the appellant and forfeited the whole amount of security deposit of Rs. 75,000/-. However, no separate penalty was imposed upon Custom Broker in view of the said forfeiture. Being aggrieved of the said Order that the appellant is before this Tribunal.

2. We have heard Shri Virendra Kumar and Shri Jitendra Singh, learned Counsels for the appellant and Shri Rakesh Kumar, learned Authorised Representative for the Department.

3. It is submitted on behalf of the appellant that the licence has been revoked on the ground of failure in suggesting to the importer about correct classification of assorted birthday candles under CTH 3604 (fireworks) which were declared under CTH 3406 (wax candles) in two prior Bills of Entry dated 29.02.2016 and 10.02.2016 filed by the appellants G-Card Holder, Mr. Kuber Nath Rai on the basis of import documents provided by the importer M/s. Ess Enn Impex. On the above suspicion that one live Bill of Entry dated 11.05.2016 filed subsequently by said Shri Kuber Nath Rai however while working as G-Card Holder for another CHA, i.e., M/s. S. Guha Sarkar & Co. that the Department got tested the samples of impugned goods and on the basis of said test reports that the candles have been classified in the Order/offence report dated 13.12.2017 under CTH3604. It is submitted that the Appeal against the said Order was decided by Commissioner of Customs (Appeals) vide Order dated 22.03.2019 wherein it has been held that there was no aid or instigation on the part of the Customs Broker, M/s. Jaiswal Import Cargo Services Ltd. Resultantly, the proceedings under Customs Act stands closed against the........