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TMI Blog2022 (8) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... xist during subsequent verification by the officers. The Commissioner was not correct in holding that the appellant Customs Broker has violated Regulation 10(n) of CBLR, 2018 - Appeal allowed - decided in favor of appellant. - Customs Appeal No. 51659 of 2021 - FINAL ORDER No.50660/2022 - Dated:- 22-7-2022 - MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) AND DR. RACHNA GUPTA, MEMBER (JUDICIAL) Ms. Reena Rawat, Advocate - for the Appellant Shri Nagendra Yadav, Authorised Representative for the Respondent ORDER We have heard learned Counsel for the appellant and learned Authorized Representative appearing for the Revenue and perused the records of the case. Both sides agree that this case is similar to the cases of Mauli Worldwide Logistics (C/50997/2021) and other cases in which Customs Brokers licenses were revoked by the Commissioner alleging violation of Regulation 10(n) of CBLR 2018 on the ground that DGARM has reported that some of the exporters whose exports the Customs Broker had handled did not exist at the premises. 2. M/s. S Prakash Kushwaha [ Appellant ], a licensed Customs Broker, is aggrieved by the order in original [ Impugned order ] dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018 to some extent. However, I am of the view that a lenient view may be taken in the matter. 4. After following due process, the Commissioner passed the impugned order. 5. The questions which need to be answered by us in this case are: a) Given the factual matrix of the case and evidence available on record, was the Commissioner correct in holding that the appellant Customs Broker has violated Regulation 10(n) of CBLR, 2018? b) If the answer to (a) above is affirmative, can the revocation of licence of the appellant customs broker be sustained? c) If the answer to (a) above is affirmative, is the forfeiture of security deposit correct? d) If the answer to (a) above is affirmative, is the imposition of penalty of Rs. 50,000/- upon the appellant customs broker correct? 6. Although both the show cause notice and the impugned order listed 15 suspected exporters whose exports the appellant had handled and who are said to be untraceable, the only report which was presented as evidence was in respect of one exporter M/s Advit Enterprises (07ABKFA5464D1ZI). Paragraph 6 of the SCN reads as follows: 6. Whereas, as a result of physical verification for identifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort. Thus, the non-bonafide is verified. Signed by the Principal Commissioner/ Commissioner 8. Learned counsel for the appellant submitted that the impugned order is not sustainable and that in similar matters where licences were cancelled alleging violation of Regulation 10(n) by the Customs Brokers based on similar reports of DGARM, this tribunal has set aside the impugned orders and restored the licences of the Customs brokers in the following cases: a) Final Order No. 52053-52054/2021 dated 3.12.2021 of CRM Logistics Pvt. Ltd. b) Final Order No. 500002/2022 dated 3.1.2022 of M/s. Anax Air Services Pvt. Ltd. c) Final Order No. 50347/2022 dated 29.04.2022 of M/s. Perfect Cargo Logistics d) Final order No. 50561/2022 dated 04.07.2022 of Mauli Worldwide Logistics 9. Learned Departmental representative reiterated the findings of the impugned order. 10. We have considered the submissions on both sides and perused the records. The report of the officer which was annexed as Relied Upon Document-2 to the show cause notice shows that the GST Registrations were issued to the exporters by the Department. In fact, the analysis by the DGARM itself was based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to other documents such as PAN card (issued by the Income Tax Department). When a document is issued by a Government authority, it is reasonable to presume it to be valid. It is not open to the appellant to question these documents and it cannot, as a Customs Broker sit in judgment over the documents issued by these officers. 15. It would have been a different matter if the documents produced by the appellant were fake or forged and were not issued by the officers. Such is not the case. In fact, the entire investigation by DGARM was initiated based on the GSTIN issued to various assessees as available in its System. Therefore, there is no possibility of the GSTIN being not issued by the department because it was extracted from its own system. Similarly, the Importer-Exporter Code (IEC) is an essential field for filing any Shipping Bill in the Customs EDI system and we find it unbelievable that an IEC not issued by the DGFT would be accepted by the Customs EDI system. Since the GSTIN is PAN based, the PAN must have also been issued by the Income Tax Department. 16. We also find that the GST Registration Certificate GST REG 06 issued to the disputed exporter on 9 February 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to ensure that all these documents were correctly issued by various authorities. If they were wrongly issued, the fault lies at the doorstep of the officer and not the Customs broker. 19. It is possible that all the authorities who issued the above documents had issued them correctly and thereafter, by the time of verification, situation may have changed. If so, it is a ground for starting a thorough investigation by the officer and is not a ground to suspend/cancel the licence of the Customs Broker who processed the exports. It is not the responsibility of the Customs Broker to physically go to and verify the existence of each exporter in every location, let alone, keeping track if the exporter has moved from that address. In this case, there is no clarity whether the exporter was not available at the registered premises on the dates of export or if it ceased to operate after the export. Even if the exporter had changed its addresses and failed to intimate, it cannot be held against the Customs Broker. 20. We now proceed to examine the scope of the obligations of the Customs Broker under Regulation 10(n). It requires the Customs Broker to verify correctness of Imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government , or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government. Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper. 22. In this case, there is no doubt or evidence that the IEC, the GSTIN and other documents were issued by the officers. So, there is no violation as far as the documents are concerned. 23. The third obligation under Regulation 10(n) requires the Customs Broker to verify the identity of the client using reliable, independent, authentic documents, data or information. In other words, he should know who the client is and the client cannot be some fictitious person. This identity can be established by independent, reliable, authentic: a) documents; b) data; or c) information 24. Any of the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sume that the officer is not wrong and that the client is indeed, functioning at that address. In the factual matrix of this case, we find that the GSTIN issued by the officers of CBIC itself shows the address of the client and the authenticity of the GSTIN is not in doubt. In fact, the entire verification report is based on the GSTIN. Further, IECs issued by the DGFT also show the address. There is nothing on record to show that either of these documents were fake or forged. Therefore, they are authentic and reliable and we have no reason to believe that the officers who issued them were not independent and neither has the Customs Broker any reason to believe that they were not independent. 26. The responsibility of the Customs Broker under Regulation 10(n) does not include keeping a continuous surveillance on the client to ensure that he continues to operate from that address and has not changed his operations. Therefore, once verification of the address is complete as discussed in the above paragraph, if the client moves to a new premises and does not inform the authorities or does not get his documents amended, such act or omission of the client cannot be held against the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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