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2022 (8) TMI 1062 - AT - CustomsSuspension of Customs Broker s Licence - Regulation 16(1) of the CBLR, 2018 - facts and circumstances of the case pending further investigation and decision on revocation of licence or imposition of penalty under CBLR, 2018 - allegation is that CB had no idea of the valuation of the consignments and never tried to know the real value of the Ball Bearings - over- valuation of exports to defraud the Exchequer by getting the very high Input Tax Credit and export related incentives - one of the exporter has been found to be non-existent at the declared place of business - employee of Custom Broker has not given truthful statement which implies that the Customs Broker is not willing to co-operate in the investigation. Non-verification of value of the export goods - HELD THAT - The Appellant is correct in stating that the CBLR do not require or authorize the Customs Broker to determine the value of the imported or export goods. The power of valuation of the goods under section 4 of the Customs Valuation Rules rests on (a) the exporter/importer itself in the case of self-assessment; and (b) the proper officer who can reassess the Bill of Entry or Shipping Bill so self-assessed by the exporter under section 17. There is nothing on record to show that the Appellant had colluded with the exporter to over-value the goods - When the proper officers have themselves allowed the clearance of Shipping Bills, no blame whatsoever can be placed at the door of the Appellant on the ground that it had no idea of the price of the export goods. Processing of Shipping Bills with over-valued goods resulting in loss to the Exchequer - HELD THAT - This is a very serious allegation not substantiated by any facts in the impugned order. The Shipping Bills once assessed are final unless they are appealed against before the Commissioner(Appeals). Therefore to allege the value is wrong, Shipping Bills must be appealed against before the Commissioner(Appeals) and the assessments modified. Nothing in the records shows that this has happened - the Customs Broker has no right or responsibility to modify the value in a Shipping Bill under the law. Non-existent exporter - HELD THAT - It is noticed that the three suppliers of M/s. Bevyesh Trading Pvt.Ltd. were found to be non-existent at their declared place of business and the Appellant should have verified this. Firstly we do not think that the Regulation requires the Appellant to physically go to the premises of each of its clients and verify whether they are functioning from that place. Secondly, if the GSTIN Number is issued by the departmental officers, it is for them to verify whether they exist at that address or otherwise. Employees of Customs Broker, who was authorized to give voluntary statement, has not given truthful statement, which amounts to an offense under the Indian Penal Code - HELD THAT - he lack of coordination in the various sections of the department for transparent investigation is also writ large in the matter. The department has ignored the submissions of the Appellant dated 28.10.2021 pointing out inter alia that even on net searching made on 27.10.2021 in respect of M/s. C.S. International it has been found that they have submitted their last GST return on 23.10.2021 for the financial year 2020-21-2022 for the same address at 278, Rabindra Sarani, Kolkata-700007. Therefore, the charge of violation of regulation 10(q) against the Appellant Customs Broker does not sustain. Also, the learned Principal Commissioner has not recorded in the impugned order that he is satisfied that there was an immediate need to stop the operation by the Appellant as required under Regulation 16 of the CBLR,2018 - the findings in the impugned order that the Appellants Customs Broker has violated Regulations 10(d), 10(m), 10(n) and 10(q) cannot be sustained. The impugned order confirming the suspension of the licence of the Appellant cannot be sustained and it needs to be set aside - Appeal allowed.
Issues Involved:
1. Suspension of Customs Broker's Licence. 2. Alleged violations of Regulations 10(d), 10(m), 10(n), and 10(q) of CBLR, 2018. 3. Justification for continuation of suspension pending further investigation. Issue-wise Detailed Analysis: 1. Suspension of Customs Broker's Licence: The Appellant challenged the order dated 08.11.2021 by the Principal Commissioner of Customs (Airport & ACC), Kolkata, which suspended their Customs Broker's Licence under Regulation 16(1) of the CBLR, 2018. The suspension was based on an alleged violation of multiple regulations by the Appellant. 2. Alleged Violations of Regulations 10(d), 10(m), 10(n), and 10(q) of CBLR, 2018: - Regulation 10(d): The Appellant was accused of not advising their clients to comply with the Customs Act and failing to bring non-compliance to the notice of authorities. The Tribunal found that the Customs Broker is not required to determine the value of export goods, which is the responsibility of the proper officer and the exporter. There was no evidence of collusion by the Appellant to overvalue the goods. - Regulation 10(m): The Appellant was alleged to have failed in discharging duties with speed and efficiency, leading to a loss to the Exchequer due to over-valuation. The Tribunal noted that the Shipping Bills were cleared by proper officers, and no appeal against the assessment was filed. The Customs Broker has no right to modify the value in a Shipping Bill under the law. - Regulation 10(n): The Appellant was accused of not verifying the correctness of the Importer Exporter Code (IEC), GSTIN, and the functioning of clients at the declared address. The Tribunal held that the Customs Broker is not required to physically verify the premises of each client. The responsibility lies with the departmental officers who issue the GSTIN. - Regulation 10(q): The Appellant was alleged to have not cooperated with the investigation. The Tribunal found that the Customs Broker's employee had verified the declared place of business, and the GST return was filed for the same address. Thus, the charge of non-cooperation did not sustain. 3. Justification for Continuation of Suspension Pending Further Investigation: The Tribunal examined whether there was a justification for the continuation of the suspension of the Appellant's licence. The Tribunal noted that the Principal Commissioner had not recorded any immediate need to stop the Appellant's operations as required under Regulation 16 of the CBLR, 2018. Conclusion: The Tribunal concluded that the findings of the impugned order regarding violations of Regulations 10(d), 10(m), 10(n), and 10(q) could not be sustained. The suspension of the Appellant's licence was set aside. The Tribunal clarified that no conclusions were drawn regarding the final liability of the Appellant, which would depend on further enquiry and investigations. Order: The impugned order was set aside, and the Appellant's appeal was allowed with consequential relief, if any. The order was pronounced in the open court on 19 August 2022.
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