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TMI Blog2021 (8) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... used goods and filed the documents based on the declaration made under invoices - M/s. U.V. Infotech is a Partnership Firm, which is run by brothers [cousins], namely, Shri Mohammad Anas and Shri Mohammad Shahnawaj. Shri Tanzeem Tanvir Shaikh, who is the actual owner of the goods, is their cousin. It cannot be said that the IEC was used by a total stranger or a fake importer. Violation of Regulations 10(a) and 10(n) of CBLR, 2018 - HELD THAT:- In the present case, appellant has done verification of the previous imports of the importer and also obtained necessary KYC documents. Then the allegation that they did not exercise due diligence for complying with Regulations 10(a) and 10(n) cannot sustain. Violation of Regulations 10(o) of CBLR, 2018 - HELD THAT:- From the documents, it is seen that Nerul address is the address of Power of Attorney holder of the appellant Shri R. Kannan Pillai. The Ghatkopar address belongs to Shri Dinesh Pratap Rai Mehta, Manager of the appellant-Company. The Nerul address is not false or fake address - there is no violation of Regulations 10(o) of CBLR, 2018. After inquiry report, the adjudicating authority has held that there is no requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted goods. Shri Tanzeem Tanvir Shaikh had used the IEC of M/s. U.V. Infotech for import of this consignment as well as two to three consignment of hard disk earlier through other CHA. Show-cause notice dated 10.01.2020 under Regulations 17(1) of CBLR, 2018 was issued to the appellant proposing to revoke the license, forfeit the security deposit and also proposing to impose penalty under Regulations 18 of CBLR, 2018. After adjudication, the Commissioner of Customs vide order impugned herein imposed penalty of ₹ 50,000/- on the appellant. Aggrieved by such order, the appellant is now before the Tribunal. 2. On behalf of the appellant, the learned counsel Shri G. Derrick Sam appeared and argued the matter. He submitted that according to department, the appellant did not exercise diligence in discharging their obligations as required under Regulations 10(a), 10(n) and 10(o) of CBLR, 2018. The said provisions read as under:- Regulation 10(a): Obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as a Customs broker and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has to be given only by the IEC holder. Even as per the show-cause notice, the IEC holder is very much aware of the imports and it is not a case of misuse of IEC without knowledge of the holder. The appellant has correctly obtained the authorisation from the IEC holder. It is submitted by him that though Shri Tanzeem Tanvir Shaikh is the owner of the imported goods, the firm M/s. U.V. Infotech, is a family business run by brothers, who are cousins. Shri Mohammad Anas and Shri Mohammad Shanawaj are partners. Shri Mohammad Anas, Partner of M/s. U.V. Infotech has stated in his statement recorded on 11.03.2019 that the business is run by Shri Tanzeem Tanvir Shaikh, who is his cousin from his father s side. It is stated that though the IEC was in their name [name of their firm] they work along with Shri Tanzeem Tanvir Shaikh, their cousin, who imported goods. That he is the financier and the goods belong to him. Shri Tanzeem Tanvir Shaikh had handed over the KYC related documents to Shri Dhurv Bhavsar, who had handed over the same to the appellant/Customs broker. Though, Shri Dhurv Bhavsar knew that Shri Tanzeem Tanvir Shaikh is the actual owner of the goods, this fact was not disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etor, M/s. Carmel Exports Imports Vs Commissioner of Customs, Cochin reported in 2012 (276) E.L.T. 505 (Ker.); (iii) M/s. Hindustan Steel Ltd., Vs State of Orissa reported in 1978 (2) E.L.T.(J 159) (S.C.); and (iv) M/s. G.N.D. Cargo Movers Vs Commissioner of Customs (General), New Delhi reported in 2017 (357) E.L.T.1184 (Tri.-Del.). 4.3 Countering the allegations that there is violation under Regulations 10(n), the learned counsel submitted that from the statement of Shri R. Kannan Pillai as well as the statement of Shri Dinesh Pratap Rai Mehta, it is very much clear that the KYC documents were collected by appellant from Shri Dhurv Bhavsar, who represented himself as the employee of the importer. The appellant had gone to the office of the said person and collected the documents. It is also admitted by Shri Dhurv Bhavsar that he did not disclose to the appellant that the goods did not belong to M/s. U.V. Infotech. This proves that the appellant did not have any knowledge of the alleged misuse of IEC. Even if it is assumed that the IEC has been misused, the appellant had acted bonafidely and in their normal course of business. There is no allegation that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment, it is brought to light that M/s. U.V. Infotech, who is the importer/IEC holder, is not the owner of the goods. He has lend the IEC to another for import of goods, which is clear misuse of IEC. As per section 7 of the Foreign Trade [Development and Regulation] Act, 1982 read with Rule 12 of Foreign Trade [Development and Regulation] Act, 1982, the goods can be imported only by a person, who has been issued import license/IEC code. The goods belonging to Shri Tanzeem Tanvir Shaikh has been imported using the IEC code of M/s. U.V. Infotech. The appellant ought to have verified this fact. Further, the appellant has received the documents from Shri Dhurv Bhavsar and not directly from the IEC holder. As reflected from the IEC the importers are Shri Mohammad Anas and Shri Mohammad Shawnawaj. Without meeting these IEC holders, the appellant has accepted the import documents from Shri Dhurv Bhavsar to file the bill of entry for clearing the consignments, and has thus violated the Regulations, 2018. 5.1 The learned Authorised Representative submitted that the goods were declared as Hard Disk Drives. On examination, it was found that these are old goods. Such old Hard Disk Drives ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he declaration made under invoices. In para 10, it is stated that the appellant after receiving the KYC through Shri Dhurv Bhavsar had checked and verified previous imports made by the appellant. So also, it is seen that the appellants had collected all the documents from the party as stipulated in Circular No.9/2010, dated 08.04.2010. It also needs to be mentioned that though department alleges that the IEC of M/s. U.V. Infotech were allowed to be used by another, viz., Shri Tanzeem Tanvir Shaikh, I am not able to persuade myself to find serious violation of the Regulation from the fact presented by this case. The discussions by the Hon ble High Court of Kerala in the case of Proprietor, M/s. Carmel Exports Imports (supra) in para 15 is noteworthy:- Coming to the submission that the appellant is only a name lender for the import of goods by one Anwar, we shall presume for the time being that the appellant is only a name lender, but the actual beneficiary of the import is one Anwar. We called upon learned counsel for the respondents to place the relevant provisions which prohibits such an activity on the part of an Import Export Code Number holder. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the papers after the examination and completing the assessment to enable the petitioner to release the goods which are not covered in Ext. P2. (iii) Issue a writ order or direction commanding the 2nd respondent to furnish copy of the bill of entry, inspection report, search list, statement, etc. to the petitioner without delay. (iv) Pass such other order or direction as this court may deem fit and proper in the interest of justice. 7.2 M/s. U.V. Infotech is a Partnership Firm, which is run by brothers [cousins], namely, Shri Mohammad Anas and Shri Mohammad Shahnawaj. Shri Tanzeem Tanvir Shaikh, who is the actual owner of the goods, is their cousin. It cannot be said that the IEC was used by a total stranger or a fake importer. 7.3 The decision of the Hon ble High Court in the case of M/s. Kunal Travels [Cargo] (supra) has held that it would be too onerous to expect the CHA to inquire into and verify the genuiness of the IEC given to it for each import/export transactions. When such code is mentioned, there is a presumption that an appropriate background check has already been done by the Customs authorities. In the present case, appellant has done verification of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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