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TMI Blog2019 (4) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... is time barred and the impugned order is liable to be set aside on this ground alone. The appellant has also taken due precaution to verify the antecedent of the importer so as to comply with the KYC norm. There are larger number of decisions which states that the appellant has Customs Broker is liable to verify the KYC of the appellant on the basis of documents supplied by them as a prudent person. The CHA is not supposed to verify the each and every aspect about the business of importer as the Inspector of Department or investigating agency - From the submission made by the ld. Advocate and fact on record, it is apparent that the appellant has taken due diligence while verifying the KYC of the appellant based on the record submitted by him. Commissioner has disagreed with the report of Inquiry Officer against the appellant without appreciating the responsibilities casted upon the appellant under CBLR. Appeal allowed - decided in favor of appellant. - Custom Appeal No. 51350 of 2016 - C/A/53566/2018-CU[DB] - Dated:- 27-11-2018 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri Arun Goyal, Advocate - for the appellant Shri Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of investigation, it was also found that the importer was not IEC Code (Importer Exporter, Code) holder. After the detailed investigation, the above referred Show Cause Notice was issued to the appellant on the ground that they have not fulfilled the conditions as stipulated under CBLR Rules, under 11(d) thereof, which stated Customs broker shall advise to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of Deputy Commissioner of Customs or Assistant Commissioner of Customs. In the instant case, the investigation revealed that the importer has mis-declared the description of goods as plastic beads‟ which was found to be plastic resin stones‟ in order to undervalue these goods, so as to evade the Customs duty. Thus, the appellant as Customs broker failed to advise the importer to declare the actual description of goods imported by them and therefore violated the provisions of Regulation 11(d) of CBLR, 2013. Also as per the Regulation 11(n) of CBLR, 2013 Customs broker shall verify antecedent, correctness of Importer Exporter Code number, identify of his client and functioning of his client at the declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, Customs, Hqrs., Jaipur as Inquiry Officer to inquire into the aforesaid charge levelled against the appellant, vide the Show Cause Notice dated 24.3.2015 as stated above. The Inquiry Officer enquired into the charge and submitted his report to the Commissioner wherein it was held that the charges against the appellant stand not proved. The Commissioner of Customs disagreed with the inquiry report submitted by the Inquiry Officer and held that the appellant is liable for penalty under the provisions of Regulation 20 of CBLR however refrained from invoking the license granted to the appellant and forfeiture of security deposit of the appellant. 3. Against this factual background, we heard Shri Arun Goyal, learned Counsel on behalf of the appellant, who submits that the impugned order passed by the learned Commissioner is not as per the Regulation of CBLR, 2013 and he has erred in imposing the penalty under Regulation 22 read with Regulation 20 of CBLR, 2013. It was submitted that on 20.8.2014 a case was booked against M/s Spectrum Enterprises, Mumbai, whose consignment was handled by the appellant. Subsequently, a prohibition order was issued to the appellant for transactin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. Therefore, it cannot be alleged that the appellant had knowingly not informed the Department about the imports being made by the persons other than the actual IEC holder. In any case, it has been held in a large number of decisions that the renting of IEC is not an offence under Customs Act. For this, reliance was placed on the following case laws: (i) Suketu Jhaveri Vs. CC (Import), Nhava Sheva 2014 (314) ELT 828 (Tri.-Mumbai); (ii) Proprietor, Carmel Exports Imports Vs. CC, Cochin 2012 (276) ELT 505 (Ker.) Regarding taking the authorisation for the import by the person other than who is importer, the learned Advocate relied upon the decision of M/s K.S. Sawant Co. Vs. CC (General), Mumbai 2012 (284) ELT 363 (Tri.-Mumbai), wherein it is held that the signing of import document by the importer amount to authorisation in a proper manner. 3.2 Learned Advocate further states that there had been no violation of Regulation 11(n) of CBLR, 2013 as there is no whisper for that even any of the allegations in the Show Cause Notice suggesting that importer/IEC holder had any dubious antecedent which is evident by the various statements recorded from the IEC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in due course, they have filed a Misc. application before this Tribunal for recalling of the order. This Misc. application was heard on 29.10.2018 and vide Misc. Order No. 50797/2018, the order was allowed to be recalled for the reasons mentioned therein. We also find that the Commissioner has himself in the impugned order not considered the offence committed by the appellant to be so serious so as to revoke their CHA licence including forfeiture of the security deposit and, therefore, he has decided to impose only token penalty of ₹ 50,000/-. But this will have far reaching consequences, if the same is taken a ground for non renewal of their licence under Customs Broker License as per Regulation 9 thereof. We find that in this case the appellant has taken a due precaution before taking the consignment for custom clearance the job was undertaken on the recommendation of one of the friend of his G card holder Shri Musha. It is the case of the Department that the appellant has not directly taken the business from the appellant. But this charge of the Department is not sustainable in view of the decision of M/s K.S Sawant Co. (supra), wherein para 5.1 is held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant CHA and, therefore, there is some merit in the argument that Regulation 13(b) has been violated by employing Shri Sunil Chitnis for doing the clearance work of M/s. Advanced Micronics Devices Ltd. The question now is whether revocation of licence is warranted for such a violation. In our view, the punishment should be commensurate with the gravity of the offence. Revocation is an extreme step and a harsh punishment, which is not warranted for violation of Regulation 13(b). Accordingly, we are of the view that forfeiture of security tendered by the appellant CHA is sufficient punishment and revocation is not warranted. Accordingly, we set aside the order of the revocation and direct the Commissioner of Customs (General) to restore the CHA licence subject to the forfeiture of entire security amount tendered by the CHA. 6. So, we find that obtaining the business through the acquaintance of their employee is not offence under the CBLR. Regarding the use of another person‟s IEC by the appellant. It is evident at the first instance that the same was not within the knowledge of the appellant and, therefore, he cannot be held responsible for that. But even otherwise, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i)Certificate of incorporation (ii)Memorandum of Association (iii) Articles of Association (iv)Power of Attorney granted to its managers, officers or employees to transact business on its behalf. (v)Copy of PAN allotment letter (vi)Copy of telephone bill 3. Partnership firm (i)Legal name (ii)Permanent address, in full, complete and correct. (iii)Name of all partners and their addresses, in full complete and correct. (iv)telephone, fax number, e-mail address of the firm and partners (i)Registration certificate, if registered (ii)Partnership deed (iii)Power of Attorney granted to a partner or an employee of the firm to transact business on its behalf (iv)Any officially valid document identifying the partners and the person holding the Power of Attorney and their addresses. (v)Telephone bill in the name of firm/partners. 4. Trusts, Foundations (i)Name of trustees, settlers, beneficiaries and signatories (ii)Name and address of the founder, the managers, Directors and the be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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