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TMI Blog2022 (3) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the appellant as has been relied upon by the Adjudicating Authority, it is clear that she only acknowledged about verifying of the quantity and quality of the goods. This particular acknowledgement is definitely in furtherance of her duty as has been cast upon under Regulation 10(d). However, this verification does not amounts to the knowledge of the CB about the actual price for the goods and that the goods were overvalued by the exporter. There is nothing on record produced by the department to prove that Customs Broker was already aware of the factum of over valuation of goods by the exporter. Simultaneous apparent fact on record is that the exporter never joined investigation inspite of the summons were repeatedly issued to him which was received back undelivered from the postal authorities. The postal report is sufficient to hold that the exporter was no more existing on the address as was provided by the Customs Broker to the authorities . Not only this it amounts to non verification about the correctness of the ICE /GSTIN number also functioning of Customs Broker office at the declared address. There is nothing on record brought by the appellant to show and prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund, officers of Special Intelligence and Investigation Branch, ACC export Commissionerate, New Customs House, New Delhi (hereinafter referred to as SIIB ) visited the premises of CELEBI Delhi Cargo Terminal Management India Private Limited, Air Cargo, Export, Near IGI Airport, New Delhi for detailed examination of export goods. They examined the consignments under Airway Bill No. 072-6668-2081 having Shipping Bill Nos. 9082776, 9082782 and 9082819 all dated 23.11.202018. Shri Yatin Khanna, holder of H Card No. 117/2013 of M/s On Line Cargo (hereinafter referred to as Customs Broker ) handed over a customs docket containing a copy of Annexure C, Check List, export invoice/ Packing list and tax invoice and scrutiny of the same it has been observed that the said shipping bill has been filed by the exporter i.e. M/s. Elegant Exports, IEC No. AAGFE3859H (hereinafter referred as the exporter ), having situated at Unit No. 204, Plot No. 21, S C Vardhman Crown Mall, Sector 19, Dwarka for export of Rubber insulated Cable. The buyer of the export shipment under all the Shipping Bill Nos. 9082776, 9082782 and 9082819 all dated 23.11.2018 was M/s. Jain Trading LLC, Office No. 301, AI J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z the old Shipping Bills. Further, it was also informed that as per ICES system, the goods against old Shipping Bills were allowed provisional release and were exported against the Shipping Bill Nos. 1070451, 1070492 and 1070464 all dated 03.01.2019 by the exporter M/s. Elegant Exports through Customs Broker, M/s. Online Cargo.. During the investigation Customs Broker was also inquired. On 11.12.2019 Ms. Bharti Chawla, F Card No. 46/2012 of CHA (M/s. On Line Cargo, CHA No. R-23/12) tendered her statement under Section 108 of the Customs Act, 1962. 4. Department accordingly alleged that the customs broker has failed to exercise due diligence to ascertain the correctness of any information which he is required to impart his client and thus they failed to follow the rules and regulation as detailed in CBLR Rules, 2018. And they are also concerned with those goods rendering liable for confiscation under Section 113(i) of the Act ibid. Further the letters and summons issued to the exporter were received undelivered from the postal authorities thus, it appears that the exporter changed correspondence address and CHA failed to bring such developments in the notice of the department. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were released provisionally. 8. It is further submitted that it is a settled law now that the CHA is merely a processor of documents of the Exporters and cannot be held guilty of mis-declaration by exporter. The Appellant relied upon the decisions of Hon ble High Court of Allahabad in the case of Kunal Travels (cargo) vs CC CE reported as [2017 (354) ELT46 (All)]; which was upheld by Hon ble Supreme Court as reported as [2017 (354) ELT A 16 (SC)]. They further relied upon the decision of Akanksha Enterprises vs CC, Mumbai reported as [2006 (203) ELT 125 (Tri-Del)]. 9. It was further submitted that in the case of CBLR proceedings, the Regulation 17 of CBLR clearly mandated that SCN has to be issued within 90 days of receipt of the Offence Report and the offence report has to be submitted within 30 days of offence or detection as per Circular No. 09/2010 dated 08.04.2010. Thus action in respect of the affidavit / declaration dated 16.03.2012 is alleged as time barred. The appellant relied upon the decision in the case of M/s. Transpeed Logistics Pvt. Ltd. vs New Delhi as decided by this Tribunal on 19.06.2019 in Appeal No. C/54037 of 2018 wherein under similar facts this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perly registering the Shipping Bills at the EDI system. They also did not bring the matter to the notice of Deputy Commissioner Customs and did not advise his client properly. Thus violated CBLR Regulation 10 (d) 2018. 12. The Customs Broker also failed to exercise due diligence to ascertain the correctness of any information with reference to her engagement with another CHA Firm as partner as against the Regulations CBLR Rule 7(2) apart from violation of Regulations 10(d), 10(n) and 10(j) of the Regulation 2018. 13. In both the situations the obligations as per CBLR 2018 force upon her to be due diligent, not to conceal an important aspect of partnership with another firm, give proper advise to his client, transact business in a proper manner, inform any change in address etc., not withhold any information and report it to the Customs Authorities etc. which she has failed to abide by, thus the order of the Commissioner Customs is proper and accordingly prays that the appeal be dismissed. 14. Reliance is placed by the department on the following decisions: 1. Universal Agency vs CC (Airport Admn), Kolkata [2015 (323) ELT 153 (Tri-Kolkata)]; 2. Kunal Travel (Carg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated 11.12.1990 had expressed her acknowledgement suggestions with the market inquiry, the way it was conducted and the value at which it arrived at i.e. ₹ 10.67 per piece of data cable. The said value suggests that the value of goods as declared by the exporter is significantly higher than the value arrived during the said market inquiry which was of the goods of like kind and quantity. At the same time this over valuation had facilitated M/s. Elegant Exporters to have availed excess draw back in respect of past clearances of the similar goods. From the statement of the appellant as has been relied upon by the Adjudicating Authority, it is clear that she only acknowledged about verifying of the quantity and quality of the goods. This particular acknowledgement is definitely in furtherance of her duty as has been cast upon under Regulation 10(d). However, this verification does not amounts to the knowledge of the CB about the actual price for the goods and that the goods were overvalued by the exporter. There is nothing on record produced by the department to prove that Customs Broker was already aware of the factum of over valuation of goods by the exporter. 18. Simu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns who avail his services as Customs House Agent. In such circumstances, the person playing the role of Custom House Agent has got greater responsibility. The very prescription that one should be conversant with the various procedures including the offences under the Customs Act to act as a Custom House Agent would show that while acting as Custom House Agent, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as a CHA by taking advantage of his access to the Department. The grant of licence to a person to act as Custom House Agent is to some extent to assist the Department with the various procedures such as scrutinising the various documents to be presented in the course of transaction of business for entry and exit of conveyance or the import or export of the goods. In such circumstances, great confidence is reposed in a Custom House Agent. Any misuse of such position by the Custom House Agent will have far reaching consequences in the transaction of business by the Custom House officials. This view was taken by Hon ble High Court of Andhra Pradesh in the case of CCE vs H B Cargo Service. Hon ble Apex Court also in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: 7. Grant of License. -(1)The applicant who has passed the written as well as oral examination shall make a payment of a fee of five thousand rupees within two months of the declaration of the results of the oral examination and inform the payment particulars to the Principal Commissioner or Commissioner of Customs referred to in sub-regulation (2) of regulation 4 and the said Principal Commissioner or Commissioner shall, on verification of the payment particulars grant license to the applicant within one month of the payment of the said fee: Provided that where the successful applicant fails to make the payment of the said fee within the stipulated period, the right to be granted a license to an applicant shall be forfeited. (2) The applicant who has paid the fee referred to in sub-regulation (1) shall be granted a license by the Principal Commissioner or Commissioner of Customs, as below:- (a) . (b) . Provided that at any given time such director, partner or an authorised employee shall not engage himself for transacting business under these regulations on behalf of more than one such firm or company 22. During investigation, department had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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