9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (8) TMI 133 - AT - CustomsRevocation of Customs Broker License - forfeiture of security deposit - levy of penalty - Duty Drawback - allegation is that the garments which were exported were highly overvalued by the exporter so as to claim ineligible drawback - violation of Regulations 11(d), 11(e) and11(n) of the CBLR, 2013 or not - HELD THAT - Drawback is a mechanism of reimbursing to the exporter, the taxes and duties which would have been paid or borne by the exporter on the finished goods as well as on the raw materials. Instead of calculating these taxes and duties each case, based on the average incidence of the taxes and duties on each type of goods, a drawback schedule is notified by the Government which indicates the drawback for each type of goods usually as a percentage of the Free on Board FOB value. For some goods, the rate could be on per piece basis and on some goods, the duty could be as a percentage of FOB with a value cap and in such cases even if the FOB value is higher, drawback will be paid only on that amount. The appellant had filed the Shipping Bills as per the documents provided to it by the exporter. While the transaction value is decided between the exporter and importer, value for determining the duty under the Customs Act is a part of assessment. The power to assess including determining the value lies with the importer/ exporter (self-assessment) or with the proper officer (re-assessment). The Customs Broker has neither any authority nor any responsibility to assess the value of the imported goods or export goods. In all the Shipping Bills, exports were allowed by the Customs in the normal course. It is only the subsequent intelligence and investigations by the DRI which revealed the alleged over valuation of exports. The Customs Broker is neither authorized under the Act nor is obligated under the CBLR to re-determine the value of any goods. Transaction value (be it FOB, CIF or C F) is a matter of negotiation between the overseas buyer and the Indian exporter. It is the consideration which is paid or payable to the Indian exporter by the overseas buyer. The Customs Broker is a stranger to this contract and has no locus standi with respect to the transaction value - Nothing in the facts of the case show that the appellant failed to fulfil its obligations under Regulation 11(d). Hence, the appellant has not violated Regulation 11(d). Violation of Regulation 11(e) - HELD THAT - This Regulation requires the Customs Broker to NOT impart any incorrect information to the exporter. After perusing the records and the appeal we find no allegation that the appellant, as the Customs Broker, has imparted incorrect information. The case of the Revenue is that the exporter had over-valued export goods and the appellant did not report it. Therefore, evidently, the appellant did not violate Regulation 11(e). Violation of Regulation 11(n) - HELD THAT - The KYC documents submitted by the appellant and verified and confirmed by the Commissionerate, leave no manner of doubt that the appellant had fully met its obligations under regulation 11(n) and had not violated it. The appellant had not violated Regulations 11(d), 11(e) or 11(n) of CBLR, 2013 - the cancellation of the licence of the appellant, forfeiture of the security deposit and imposition of penalty on the appellant are not sustainable and need to be set aside. - Appeal allowed.
Issues Involved:
1. Had the appellant violated Regulations 11(d), 11(e), and 11(n) of the CBLR, 2013? 2. If so, is the penalty of cancellation of its licence, forfeiture of its security deposit, and the imposition of a fine of Rs. 50,000/- just and fair? Summary: Regulation 11(d): The Revenue alleged that the appellant, as a Customs Broker, failed to advise the exporter to comply with the Act and did not notify the authorities about the over-invoicing of exports, facilitating ineligible drawback claims. The appellant contended that it had no knowledge of the overvaluation and had no authority to verify the export value. The Tribunal found that the determination of export value is part of the assessment process, which is the responsibility of the importer/exporter or the proper officer, not the Customs Broker. Therefore, the appellant did not violate Regulation 11(d). Regulation 11(e): This regulation requires the Customs Broker to ensure the correctness of any information imparted to the client. The Tribunal found no allegation or evidence that the appellant provided incorrect information to the exporter. Therefore, the appellant did not violate Regulation 11(e). Regulation 11(n): The regulation mandates the Customs Broker to verify the Importer Exporter Code (IEC) number, identity, and functioning of the client using reliable documents. The appellant provided copies of the Aadhar card, PAN card, and IEC certificate, which were verified and found in order by the Commissionerate. Thus, the appellant fulfilled its obligations under Regulation 11(n). Conclusion: a) The appellant had not violated Regulations 11(d), 11(e), or 11(n) of CBLR, 2013. b) Consequently, the cancellation of the licence, forfeiture of the security deposit, and imposition of a penalty on the appellant were not sustainable and were set aside. The appeal was allowed, and the impugned order was set aside with consequential relief to the appellant.
|
