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2019 (4) TMI 911 - AT - CustomsImposition of penalty on CHA - Regulation 22 read with Regulation 20 of CBLR, 2013 - Contravention of provisions of Regulation 11(d), 11(n) and 17(9) ibid - mis-declaration of imported goods - it was alleged that the appellant as Customs broker failed to advise the importer to declare the actual description of goods imported by them - time Limitation - Held that - Obtaining the business through the acquaintance of their employee is not offence under the CBLR - Regarding the use of another person‟s IEC by the appellant, it is evident at the first instance that the same was not within the knowledge of the appellant and, therefore, he cannot be held responsible for that. Even otherwise, it has been held in the case of M/s Necko Freight Forwarders Ltd. 2018 (1) TMI 1185 - DELHI HIGH COURT that lending of IEC is not an offence under the Customs Act - Therefore, the appellant can also not be held to be liable for this charge which in any case is not sustainable against the appellant. Time Limitation - Held that - The entire proceeding is time barred and the impugned order is liable to be set aside on this ground alone. The appellant has also taken due precaution to verify the antecedent of the importer so as to comply with the KYC norm. There are larger number of decisions which states that the appellant has Customs Broker is liable to verify the KYC of the appellant on the basis of documents supplied by them as a prudent person. The CHA is not supposed to verify the each and every aspect about the business of importer as the Inspector of Department or investigating agency - From the submission made by the ld. Advocate and fact on record, it is apparent that the appellant has taken due diligence while verifying the KYC of the appellant based on the record submitted by him. Commissioner has disagreed with the report of Inquiry Officer against the appellant without appreciating the responsibilities casted upon the appellant under CBLR. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Violation of Regulation 11(d) of CBLR, 2013. 2. Violation of Regulation 11(n) of CBLR, 2013. 3. Violation of Regulation 17(9) of CBLR, 2013. 4. Compliance with procedural timelines under CBLR, 2013. 5. Legality of penalties imposed under Regulation 22 read with Regulation 20 of CBLR, 2013. Detailed Analysis: 1. Violation of Regulation 11(d) of CBLR, 2013: The appellant, a Custom House Agent, was accused of failing to advise the importer to comply with customs regulations and not informing the Deputy Commissioner of Customs about the mis-declared goods. The investigation revealed that the importer mis-declared plastic resin stones as plastic beads to undervalue the goods and evade customs duty. The appellant argued that they filed the Bill of Entry based on the documents provided by the importer and had no reason to suspect mis-declaration. 2. Violation of Regulation 11(n) of CBLR, 2013: The appellant was also accused of not verifying the antecedents, correctness of the Importer Exporter Code (IEC) number, and the identity and functioning of the client. The investigation showed that the actual IEC holder and the importers were different persons, and the appellant failed to verify the authenticity of the importer. The appellant countered that they verified the IEC holder’s details using reliable documents and independent sources, including the Director General of Foreign Trade’s website and the Service Tax Department. 3. Violation of Regulation 17(9) of CBLR, 2013: The appellant was charged with failing to supervise their employee, who handled the customs clearance without verifying the details of the importer. The appellant argued that their employee acted on the recommendation of a friend and that they had taken due precautions to verify the importer's antecedents. 4. Compliance with Procedural Timelines under CBLR, 2013: The appellant contended that the proceedings against them were not completed within the mandatory nine-month period prescribed under the CBLR, 2013. The Show Cause Notice was issued on 24.03.2015, and the final order was passed on 01.02.2016. The appellant cited several case laws to argue that the entire proceedings were vitiated due to non-compliance with the prescribed timelines. 5. Legality of Penalties Imposed under Regulation 22 read with Regulation 20 of CBLR, 2013: The appellant challenged the penalty of ?50,000 imposed by the Commissioner of Customs, arguing that the Inquiry Officer’s report exonerated them of all charges. The Commissioner disagreed with the Inquiry Officer’s findings and imposed the penalty. The appellant argued that the penalty was not justified as they had taken due precautions and verified the importer's details as per the guidelines prescribed by the Central Board of Excise & Customs. Conclusion: The Tribunal found that the appellant had taken due precautions to verify the importer's details and complied with the Know Your Customer (KYC) norms based on the documents provided. The Tribunal also noted that the proceedings were time-barred as they were not completed within the prescribed nine-month period. Consequently, the Tribunal set aside the impugned order, including the penalty imposed, and provided consequential relief to the appellant.
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