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TMI Blog2015 (12) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 14-12-2015 - P.K. JAISWAL AND J.K. JAIN, JJ. For The Petitoner : Shri Subodh Abhyankar, learned counsel For The Respondent : Shri A.S. Parihar, learned counsel They are heard. 2. Brief facts of the case are that the petitioner is holder of regular Custom House Agent (for short 'CHA') license No.11/356 issued by Mumbai Commissionerate and granted permission to transact CHA business in Indore Commissionerate. The petitioner firm applied for a carting permission on behalf of one M/s. D.K. Exports, having their address at K-5/45/27, K Block, Gali No.26- 32, West Gonda, Delhi to bring consignment of 100 pallets of green marble inside the port of ICD-Kheda for export to Durban for the consignee M/s. Bajo CS Traders, 47-A, Edlay Symons, Avene East London, Zip Code-5200, South Africa. After the permission was granted the cargo which came in Truck bearing registration No.RJ-27-GA-0988, was unloaded at the warehouse and the same are still lying there only. 3. On 15.9.2012, the petitioner approached the Superintendent, Customs, ICD Kheda seeking back to town permission of the said consignment of green marble reasoning that the export order had been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nger exporter, presented goods for export on behalf of a fictitious/bogus exporter. The genuine stand taken by the petitioner is that they had taken all the precautions prescribed vide Board's circular No.09/2010-Customs dated 8.4.2010 in respect of identifying/know your customers (KYC) criteria. The respondent authority found that the petitioner again failed to produce the exporter as per terms of Regulation 13 (o) of CHALR, 2004. It is also held that he presented goods for export on behalf of fictitious/bogus exporter whom he cannot produce before the Customs Department though sufficient time was given for same time and again. The authority held that it is clear cut and deliberate violation of Regulation 13 (o) of CHALR, 2004 and prohibited the petitioner from transacting any business in any of the custom port falling under the jurisdiction of Commissioner, Customs and Central Excise, Indore in terms of Regulation 21 of CHALR, 2004. Para 8.4 and 8.5 of order dated 14.7.2015 (Annexure A) are relevant which reads as under :- 8.4 I find that the CHA has failed to take a note of the fact that the Board's Circular No.09/2010-Customs dated 08.04.2010 makes the KYC norms mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , adduced by the CHA in their written submission makes the things even more clear. The said decision enunciates the principle that 'if a particular thing is required to be done in a particular manner. Then that thing must be done in that manner only or not at all.' When the Regulation 13 (o) made it obligatory on part of CHA to ensure functioning of the client from the declared address there is no reason why should not have been done it not done, the CHA had no propriety to present the documents before the Customs authorities. I am, therefore, inclined and even constrained to hold that the CHA has utterly failed in fulfilling the obligation cast upon him and the haste and lackadaisical manner displayed by the CHA in processing and presenting the export documents in the instant case, cast his role under serious suspicion. The CHA has acted in a most casual and lackadaisical manner and presented the goods for export before the customs officers on behalf of a fictitious and bogus client, thus violating the obligations placed upon the CHA in terms of Regulation 13 of the CHALR 2004. I, therefore, do not find any reason to show any leniency towards the CHA, as far as the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to hold the stranger to be a genuine exporter whereas the record of the exporter was under doubt. In respect of report suspended CHA license of the petitioner, he submits that the action taken against the petitioner is without record to fact that he presented goods for export on behalf of a fictitious/bogus exporter who he cannot produce before the Customs Department though sufficient time was given for same time and again and due to the aforesaid reasons, impugned order has been passed by the Commissioner and no case to interfere with the aforesaid impugned order as prayed is made out and prays for dismissal of the writ petition. 7. The sole contention of the learned counsel for the petitioner that the petitioner has not violated the guidelines issued vide circular dated 8.4.2010 (Annexure P/4). He has also placed reliance on the decision of the Division Bench of Principal Seat in the case of Bharat Heavy Electricals Ltd. v/s. Commr. of Cus. C. Ex., Bhopal reported as 2015 (316) E.L.T. 413 (M.P.) and submitted that the circular issued by the Board are binding on the Department. 8. In the matter of Commr., Central Excise, Bolpur v/s. M/s. Ratan Melting and Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporters who indulge in fraudulent activities. Accordingly, Regulation 13 of CHALR, 2004, has been suitably amended to provide that certain obligations on the CHAs to verify the antecedent, correctness of Import Export Code (IEC) Number identity of his client and the functioning of his client in the declared address by using reliable, independent, authentic documents, data or information. In this regard, a detailed guideline on the list of documents to be verified and obtained from the client/ customer is enclosed in the Annexure. It would also be obligatory for the client/ customer to furnish to the CHA, a photograph of himself/herself in the case of an individual and those of the authorized signatory in respect of other forms of organizations such as company/ trust etc., and any two of the listed documents in the annexure. 12. On due consideration of the aforesaid, we are of the view that it is a case of clear violation of Clause 6 of Regulation No.13 of CHALR, 2004. The petitioner will not get any help from clause 6 of Circular No.09/10 of the Board. The respondent had not committed any mistake in passing the impugned order with holding the license of the petitioner and pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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