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TMI Blog2020 (11) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... of CBLR, 2013 by the Custom Broker. As submitted by the appellants, he has not given any reasoning or findings of his own. To this extent, learned Commissioner has again violated the principles of natural justice. Regulation 11(n) of the Customs Broker Regulations, 2013 - HELD THAT:- The said Regulation stipulates that: - A Customs Broker 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 information. Though the Customs Broker has been maintaining that as the importer Shri Abid Ali was always present during the course of investigation and presented himself before the authorities a need for independent verification had not arisen. We find that such an argument is not acceptable. Looking into the circumstances of the case where it is not the case of the department that the importer is either absconding nor traceable, the omission on the part of the Customs Broker becomes a bit less serious. Shri Abid Ali has presented himself as the importer and signed all the documents. He has also submitted himself before the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdered that it could be within 15 days i.e. on or before 25.10.17, in terms of Regulation 19(2) of CBLR, 2013; the Order dated 25.10.17 was passed ex parte. 2. Being aggrieved by the said Order-in-Original, the appellant preferred an Appeal before this Bench, who, vide Final order No 75073/2019 dated 07.01.2019, set aside the OIO and remanded the matter back to the Commissioner with a direction to allow cross examination of Shri Abid Ali and Shri Maswood Ahmed. In de novo proceedings a Show Cause Notice, dated 22.12.2017, was issued seeking continuation of the suspension, revocation of licence and forfeiture of security deposit; Inquiry officer submitted a report dated 21.8.2019, upholding the charge of violation under Regulation 11(n) of CBLR, 2013 and discharging of violation of Regulations 11(a), 11(d) and 17(9) ibid. After according a personal hearing Learned Commissioner of Customs(Airport Administration), Customs House, Kolkata, passed the impugned order, dated 19.06.18, revoking CB Licence and forfeiting security deposit. Hence, this appeal. 3. Learned counsel for the appellants submits that the impugned Order-in-Original is bad in law and not maintaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and the same amounts to grant of authorization in favour of the CB, as held by the Hon ble Tribunal in a number of cases; in the absence of any specific charge of failure of supervision of the employee by the CB, there cannot be any violation of Regulation 17(9) of CBLR, 2013 Commissioner s reliance on Hon ble Supreme Court s decision in the case of K.M. Gantra Co is not correct, as there is nothing on record to show that the appellants had any intention in the alleged violation; out of the four consignments of M/s. M.A. Traders, one container was given out of charge by the Customs which necessarily meant that the alleged misdeclaration was not noticed even by Customs; the allegation of mis-declaration cannot be cast upon the appellants; as regards the container of M/s. ZS Tradecom Pvt. Ltd. (where the G-card holder of the appellants was only contacted by Md. Abid Ali, but no job was undertaken by the CB), it is submitted that nobody has stated during the course of investigation that the appellants had any prior knowledge of presence of cigarette in the said container; therefore, its incorrect visit the appellants with the maximum penalty under the regulation; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aswood Ahmed himself stated that the real importer was one Shri Bedi of New Delhi and that he has not authorised anyone to import on his behalf. On the other hand, we find that the CB submits that the department themselves could not find out any fault while clearing the consignments imported by M/s. MA Traders and as such, no previous knowledge of CB can be alleged and in respect of imports by M/s.ZS Tradecom Pvt. Ltd., no involvement of the CB in secreting cigarettes in the consignment was alleged. The appellants also submit that the order has been issued beyond the stipulated period; learned Commissioner did not give any opportunity for cross-examination as directed by the CESTAT and that the learned Commissioner only relied upon their enquiry report but did not give any findings of his own. 6. We find that CESTAT vide Final Order No.75073/2019 dated 7.1.2019 set aside the order dated 19.6.2018 and remanded the matter back for de novo orders with a direction to provide opportunity for cross-examination of Mr. Abid Ali and Mr. Maswood Ahmed. We find that this Bench vide above order has directed as follows: 9. After carefully considering the facts of the case, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid Ali was always present during the course of investigation and presented himself before the authorities a need for independent verification had not arisen. We find that such an argument is not acceptable. In the instant case, the IEC holder was one Shri Maswood Ahmed and Shri Abid Ali were attending to the imports and signing the documents. Any Customs Broker would immediately differentiate between the original IEC holder and those others who are using the IEC of other persons. It has been held by various Benches that lending of IEC in itself is not an offence, under Customs Act, in the following cases: (i). Hamid Fahim Ansari Vs. CC(Imports), Nhava Sheva [2009(241) ELT 168 (Bom.)] (ii). Gopal Agarwal Vs. CC, New Delhi [2015(326) ELT 593 (Tri. Del.)] (iii). Proprietor, Carmel Exports Imports Vs. CC, Cochin [2012(276) ELT 505 (Ker.)] 9. Looking into the circumstances of the case where it is not the case of the department that the importer is either absconding nor traceable, the omission on the part of the Customs Broker becomes a bit less serious. Shri Abid Ali has presented himself as the importer and signed all the documents. He has also submitted himself before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts have been elaborately discussed in the inquiry report and no sustainable ground for differing with the same could be made out. 11. Similarly, in the case of R.S.R. Forwarders Vs CC, New Delhi 2018(364) ELT 541(Tri-Delhi) held that 10 . The role of the CHA in the Customs procedures is significant. The CHA is expected to safeguard the interest of exporter of the goods as well as the Customs. The adjudicating authority, in his detailed findings, have concluded that the appellant is guilty of violation of various regulations of CBLR, 2013. But, in the facts and circumstances of the case, we are of the view that even though the appellant is guilty, the violations are not so grave as to justify the revocation of the customs license. We are of the view that ends of justice will be met with the forfeiture of security deposit of ₹ 75,000/- and in addition imposition of penalty of ₹ 50,000/- . 12. We also find that Tribunal in the case of Sadanand Chaudhary Vs CC, New Delhi 2018 (363) E.L.T. 1018 (Tri. Del) held that 4 . It is seen from the record that the appellant had filed Bill of Entry dated 20-1-2017 declaring the goods as Vinyl coated pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the lending of IEC. Further we find that the lending of IEC is not an offence under the Customs Act, 1962 as held in various decisions cited supra. As far as allegation against the appellant that he had not verified the antecedents of IEC holders, we find that as per Regulation, the Customs Broker is to verify the correctness of IEC number, identity of client and functioning of them at the declared address using reliable, independent, authentic documents data or information. Further physical inspection of the premises of the importer or exporter is not required under the law as well as under the Board s Circular No.9/2010-Cus dt. 08/04/2010. In the present case, the appellant had obtained copies of PAN card, Aadhaar Card, GST registration certificate, IEC certificate from all the three exporters concerned. Further we find that in the case of G.N.D. Cargo Movers cited supra, the Division Bench of the Tribunal had held in para 5 6 as under: - 5. We further note that Regulation 11 (e) requires the Customs House Agent to exercise due diligence to ascertain the correctness of any information which he imparts to clients with reference to work relating to clearance of cargo / ..... X X X X Extracts X X X X X X X X Extracts X X X X
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