9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (6) TMI 145 - AT - CustomsRevocation of Customs Broker License - forfeiture on security deposit - imposition of penalty - failure to obtain authorisation from the exporters - HELD THAT - The impugned order relies on the fact that there is no post/ courier received or evidence of receipt of such authorisation. The impugned order also relies on the fact that date of all authorizations is nearly the same. The impugned order also relied on the fact that exporters were not found and Shri Manoj Kannar is also not traceable. The appellant had produced authorisation during enquiry and Shri Sagar Thakkar, authorised person of the appellant in his reply during the statement stated that they had obtained authorisation. While the facts mentioned in the impugned order may be sufficient to raise suspicion about receipt or genuineness of the authorisation but it is not sufficient to hold that no authorization was received - we are unable to hold the charge made under Regulation 10(a) of the CBLR. Allegation made under Regulation 10(d) of CBLR, 2018 - HELD THAT - The Adjudicating Authority has not countered the arguments given by the appellant. There is no evidence cited by the Adjudicating Authority to establish that the appellant had any pre-knowledge of the nature of cargo. The statement on which the Adjudicating Authority has relied on, has not been provided to the appellant. In view of the fact that statement has not been provided, the impugned order cannot be upheld as the charge has been confirmed on the basis of said statement - the allegation made under Regulation 10(d) of CBLR, 2018 are set-aside and the issue is remanded to the Adjudicating Authority for fresh decision. CBEC Circular 9/2010 also specifies that KYC is to be done on the basis of documents and not by physical visit of the client s premises. The impugned order holds that customs broker never tried to contact the exporters. We do not find merit in the argument that there is no such requirement under Regulation 10(n) of CBLR 2018 which requires customs broker to directly contact and in touch with the exporters. Accordingly, we are unable to uphold the invocation of Regulation 10(n) and the same are dropped. Limitation prescribed under Regulation 17 of CBLR, 2018 - HELD THAT - A perusal of Regulation 17 clearly shows that the period of limitation starts when the Principal Commissioner of Customs or Commissioner of Customs receives the offense report. In the instant case, the Principal Commissioner of Customs, Kandla initiated the proceedings and report received by him on 26.03.2019. This fact has not been challenged by the appellant. In view of above, we find there is no delay in initiation of proceedings. Appeal allowed by way of remand.
Issues Involved:
1. Failure to obtain authorization from exporters under Regulation 10(a) of CBLR, 2018. 2. Failure to advise clients to comply with the Customs Act under Regulation 10(d) of CBLR, 2018. 3. Failure to discharge duties with utmost speed and efficiency under Regulation 10(m) of CBLR, 2018. 4. Failure to verify the correctness of client information under Regulation 10(n) of CBLR, 2018. 5. Limitation period for issuing notice under Regulation 17 of CBLR, 2018. Issue-wise Detailed Analysis: 1. Failure to Obtain Authorization from Exporters (Regulation 10(a) of CBLR, 2018): The appellant argued that they had obtained proper authorization from all five exporters, including KYC documents, Importer Exporter Code, and other necessary certificates. The adjudicating authority's reasoning that the appellant failed to provide details of the courier/post through which they received the authorization letters and that all authorizations were of nearly the same date was found insufficient to conclude that no authorization was received. The Tribunal held that while the facts raised suspicion, they were not enough to prove that no authorization was obtained. Hence, the charge under Regulation 10(a) was not upheld. 2. Failure to Advise Clients to Comply with the Customs Act (Regulation 10(d) of CBLR, 2018): The appellant contended that they were unaware of the overvaluation of the cargo and informed the Customs department immediately upon discovering the issue. The adjudicating authority did not provide evidence to establish that the appellant had pre-knowledge of the cargo's nature. Since the statement relied upon by the adjudicating authority was not provided to the appellant, the Tribunal set aside the allegation under Regulation 10(d) and remanded the issue for fresh adjudication after providing the statement to the appellant. 3. Failure to Discharge Duties with Utmost Speed and Efficiency (Regulation 10(m) of CBLR, 2018): The Tribunal found that the charge of pre-knowledge was confirmed only on the strength of the appellant's statement, with no material evidence to substantiate it. The Tribunal set aside the impugned order and remanded the issue for fresh adjudication. 4. Failure to Verify Correctness of Client Information (Regulation 10(n) of CBLR, 2018): The appellant had obtained several documents from the exporters, including KYC, Importer Exporter Code, and bank-verified account details. The Tribunal noted that the CBEC Circular 9/2010 specifies that KYC is to be done based on documents, not by physically visiting the client's premises. The Tribunal found no merit in the argument that the customs broker needed to directly contact the exporters. Consequently, the invocation of Regulation 10(n) was not upheld, and the charge was dropped. 5. Limitation Period for Issuing Notice (Regulation 17 of CBLR, 2018): The Tribunal examined the timeline and found that the Principal Commissioner of Customs, Kandla, received the offense report on 26.03.2019 and initiated proceedings on 21.05.2019. The Tribunal held that the limitation period starts when the Principal Commissioner receives the offense report, not when the offense was committed. Therefore, there was no delay in initiating proceedings, and the appellant's argument regarding the limitation was not upheld. Conclusion: The Tribunal set aside the impugned order and remanded the matter for re-determination, emphasizing the need for fresh adjudication on specific issues after providing the necessary statements to the appellant. The charges under Regulations 10(a), 10(d), 10(m), and 10(n) were not upheld due to insufficient evidence and procedural lapses. The limitation argument under Regulation 17 was dismissed, confirming that the proceedings were initiated within the prescribed period.
|
