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TMI Blog2016 (7) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the authorities at the time of clearance of goods and was accepted and goods were cleared, would mean that main appellant could not have contravened the provisions of Regulations 13(a) of CHALR 2004. It can be noticed the Regulation mandates the CHA to verify antecedent, correction of IEC identity of client and functioning of his client at the declared address. It is on record that appellant CHA has verified the same by filling up of the KYC form, verifying the details of IEC from the DGFT website, MSEDCL electricity bill is in the name of IEC holder, ration card, pan card, licence issued under shop and establishment Act, 1948 and above all authentication of bank account by the bank. We find that CHA has verified these documents in respect of all the three IEC holders. In our considered view nothing more can be expected out of a CHA to verify the antecedents of a client coming to him with a business proposal for clearance of imported consignment. In our view the Adjudicating Authority has misconceived the purpose of this Regulation. That there is no violation of CHALR is established against the appellant, nor there is any finding that appellant had advised importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded on 22/05/2012. They have inter alia stated that they are not aware of the goods being imported on their IEC; that they are not the owner of the goods; that a person named Zeeshan had approached them and had obtained IEC in their name and imported the goods on their IEC. 4. The statement of Shri Zeeshan Anwar, the IEC user was recorded under Section 108 of the Customs Act, 1962 on 23/05/2012. He accepted that he is the owner of the goods. He accepted that the actual value of the container is around ₹ 2,50,000/-. The value of the Glass Sheet is 1.05 US $ per sqm. Whereas value of aluminium coated mirror is 1.17 US $ per sqm. He agreed to pay Customs Duty for the past imports in the name of M/s Riya International and M/s Apex International. 5. The differential duty in the case of M/s Apex Enterprises works out to be ₹ 5,12,285/- of which ₹ 3,30,938/- is yet to be recovered. As the importer failed to make the payment, summons were issued to IEC user as well as CHA on 08/10/2012 to appear o 16/10/2012 and 17/10/2012. However, the IEC user did not appear. The CHA also did not turn up in response to the summons. The CHA submitted a letter dated 17/10/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of Bill of Entry. Further in the case of import in the name of Harmony Trading, the proprietor/IEC holder is Hamid Bhai Ansari and pursuant to assessment of the import consignment, the import duty was paid, but the Customs were not releasing the consignment. The said Hamid Bhai Ansari moved the Honble Bombay High Court in Writ Petition wherein the Honble High Court taking notice of the facts that the duty have been paid and there is no other dispute as regards the classification or valuation and further the importers/IEC holders was found to be existing, it was observed by the Honble High Court that the Revenue has been unable to point out any violation under the Customs Act or any Rule or regulation framed thereunder by which a person having valid IEC No. and having paid the customs duty is prevented from importing goods. In case of any misrepresentation in obtaining the IEC code, it is the office of the DGFT to take action for the same. Accordingly, the said IEC holder/Writ Petitioner Hamid Bhai Ansari was held to be entitled to release of the goods 2009 (24) ELT 168. Thus, in view of the order of the Honble High Court, it is established that there is no violation unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the importers. While holding the said charge as proved the Commissioner has failed to appreciate that the Inquiry Officer in his report has clearly stated that nowhere in the statements or at any time during the inquiry the appellant admitted that he was aware of the import of goods being under invoiced. The said findings have not been proved to be wrong by the Commissioner by producing any evidence thereto. As such, the findings that the CHA is responsible for violation of Regulation 13(e) of the CHALR, 2004 are bad in law and required to be set aside. 9.5. The Commissioner failed to appreciate provisions of Regulation 22(5) of CHALR, 2004 wherein it is stipulated that the DC or Assistant Commissioner of Customs shall submit his report of the inquiry within 90 days from the date of issue of a notice. In the present case, the notice was issued on 20.4.2010 and inquiry report was completed on 5.3.2014 which is after four years and therefore the whole proceedings are hit by limitation and the findings of the Commissioner that mere technicalities cannot be allowed to frustrate statutory proceedings are grossly incorrect and contrary to the facts. The Commissioner has also not follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner of Customs or Assistant Commissioner of Customs 11(ii) Article of Charge - II: Regulation 13(d) of CHALR 2004 states that A Customs House Agent shall advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. 11(iii) Article of Charge - III: Regulation 13(e) of CHALR 2004 states that A Customs House Agent shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. 11(iv) Article of Charge - IV: Regulation 13(n) of CHALR 2004 states -A Customs House Agent shall ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay. 11(v) Article of Charge - V: Regulation 13(o) of CHALR 2004 states that A Customs House Agent shall verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as holding a Power of Attorney on behalf of the IEC holders. It is also to be noted that the Power of Attorney is not registered. All these facts tend to the conclusion that the Power of Attorney is the result of afterthought in an attempt to circumvent the allegation of mis-use of IEC. 14. We find that the Adjudicating Authority has totally misdirected the issue. It is on record that Shri Zeeshan Anwar is a power of attorney holder. This fact is not denied but sought to be brushed aside on the ground that power of attorney was not brought before investigating authorities. It is to be noted that the said power of attorney as given to Zeeshan is not disputed nor it is controverted by the Adjudicating Authority. The said power of attorney holder has signed few authorisations and produced authorisations signed by IEC holders. We note that during examinations and cross examination Shri Zeeshan Anwar, it was clearly recorded that he had presented the proprietor of Apex Enterprises and Riya Enterprises and another before the CHA in the office of CHA, while giving papers for clearance of consignment, it is also recorded that CHA advised him to give all proper papers and enquired abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fail to understand how these findings can be arrived against CHA, as it is on record that all these information was alleged after the goods were cleared; and in examination and cross examination nothing is brought on record that CHA was aware of misdeclaration. The findings recorded by Adjudicating Authority in this case is based on surmises and assumptions as is evident from the findings recorded and reproduced hereinabove. 16. Regulations 13(e) of CHALR 2004 The finding of Adjudicating Authority on this are as under:- 22(ii).My discussions above have already laid made it clear that the CHA was aware that Shri Zeeshan was not the IEC holder and yet chose to deal only with him for the clearance of goods in the names of different IECs without even scant scrutiny of the import documents. It is seen that the Shops Establishment Certificate of MIs Riya Enterprises is for cutlery items and that of M/s Apex Enterprises is for artificial jewellery whereas both the Proprietary concerns were importing glass sheets. This itself should have alerted the CHA to exercise caution and ensure that the IEC holders are informed about the provisions of the law relating to imports. The co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance when the CHA was aware that he was not dealing with the IEC holder, it was incumbent on the CHA to confirm the identity and functioning of the client at the declared address even if it meant making a personal visit to confirm the authenticity. This particularly so in view of the fact that the letters addressed to one of the IEC holders have been returned indicating that the address is fictitious. The CHA has miserably failed in this regard as notwithstanding all their claims, the fact remains that the IECs were complete dummies who had nothing to do with the import and the imports were fraudulently effected by Shri Zeeshan Anwar Khan. It can be noticed the Regulation mandates the CHA to verify antecedent, correction of IEC identity of client and functioning of his client at the declared address. It is on record that appellant CHA has verified the same by filling up of the KYC form, verifying the details of IEC from the DGFT website, MSEDCL electricity bill is in the name of IEC holder, ration card, pan card, licence issued under shop and establishment Act, 1948 and above all authentication of bank account by the bank. We find that CHA has verified these documents in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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