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TMI Blog2022 (8) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... rter/importer itself in the case of self-assessment; and (b) the proper officer who can reassess the Bill of Entry or Shipping Bill so self-assessed by the exporter under section 17. There is nothing on record to show that the Appellant had colluded with the exporter to over-value the goods - When the proper officers have themselves allowed the clearance of Shipping Bills, no blame whatsoever can be placed at the door of the Appellant on the ground that it had no idea of the price of the export goods. Processing of Shipping Bills with over-valued goods resulting in loss to the Exchequer - HELD THAT:- This is a very serious allegation not substantiated by any facts in the impugned order. The Shipping Bills once assessed are final unless they are appealed against before the Commissioner(Appeals). Therefore to allege the value is wrong, Shipping Bills must be appealed against before the Commissioner(Appeals) and the assessments modified. Nothing in the records shows that this has happened - the Customs Broker has no right or responsibility to modify the value in a Shipping Bill under the law. Non-existent exporter - HELD THAT:- It is noticed that the three suppliers of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a licenced Customs Broker. They filed Shipping Bills in respect of 12 consignments for their clients (i) Bevyesh Trading, (ii) Evergreen Corporation, (iii) M/s. C.S. International (Prop. Chandra Kala Sharma) for export of Ball Bearing. The SIB of the Principal Commissioner of Customs (ACC), Kolkata received information to the extent that 4 export consignments (under Shipping Bill Nos. 5330386, 5330392, 5330396 5330397 all dated 21.09.2020 respectively) of Ball Bearings filed by M/s. Gupta Vyapaar (IEC CTGPG 6543A) may be highly overvalued to defraud the Exchequer by getting higher input tax credit and export related incentives. Incentives claimed in the above Shipping Bills are as follows:- Total FOB value: Rs.2,93,05,216/- Total IGST refund claimed: Rs.52.77 Lakh Tatal MEIS claimed: Rs.8.79 Lakh. 2.1 On examination it was found that the goods were declared as Rolling Element Components/Parts (B.Bearing) and the value of the goods was declared as USD 3.99 (Rs.290.87) per unit. The approx. weight of each ball bearing (net weight divided by number of units) was found to be approx. 9.71 grams. Supplier of the said goods contained in these Shipping Bills, M/s.Sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4699650 25-08- 2020 72.90 25000 3.95 No Ball or Bearing 8.20 gms Bevyesh Trading Addressee shifted to new address as per investigation report of DRI E, WB. All the three suppliers of the exporter are found to be non-existent. 2 4700067 25-08- 2020 72.90 25000 3.95 No Ball or Bearing 8.20 gms 3 4700360 25-08- 2020 72.90 25000 3.95 No. Ball or Bearing 8.20 gms 4 470549 25-08- 2020 72.90 25000 3.95 No. Ball or Bearing 8.20 gms 5 4745100 27-08- 2020 72.90 25000 3.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bengal. 5. A prohibition Order No.11/2021 dated 13.10.2021 was issued against the Appellant for the alleged failure in discharging their obligation under Regulations 10(d), 10(m), 10(n) and 10(q) of CBLR, 2018 as follows :- 9. Provisions of Regulations of Customs Broker Licensing Regulation (CBLR), 2018 that appears to be violated by the CB M/s. Shaikh Pandit Agencies Pvt.Ltd. 9.1 As per Regulation 10(d) of CBLR, 2018, a Customs Broker shall advise his clients to comply with the provisions of Customs Act. In case of failure by his clients, it is the responsibility of a Customs Broker to immediately bring this non-compliance to the notice of Deputy/Assistant Commissioner. From the facts mentioned above, it is evident that one of the three exporters viz. M/s. C S International (Chandra Kala Sharma) has been found to be non-existent. Therefore, it appears that the CB was not in a position to advise his clients to comply with the provisions of Customs Act, 1962, thereby, failed to comply with the provisions of Regulation 10(d) of CBLR, 2018. 9.2 As per Regulation 10(m) of CBLR, 2018, a Customs Broker shall discharge his duties as a Customs Broker with utmost sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Regulation 10(q) of CBLR, 2018, a Customs Broker shall co-operate with the Customs authorities and shall join investigations promptly in the event of an inquiry against them or their employees. In the subject case, as per statement of Shri Sudhansu Poddar, authorized representative of the CB, one of the employees of the CB has verified the declared place of business in respect of all three exporters mentioned in Table-A. However, as per verification report of GST officials, the exporter M/s C S International (Chandra Kala Sharma) has been found to be non-existent. This fact implies that employee of the CB who has been authorized to give voluntary statement has not given truthful statement which is an offence under the Indian Penal Code. On the other hand, it also establishes that the Customs Broker is not willing to co-operate in the investigation thereby violating the provisions of Regulation 10(q) of CBLR, 2018. Accordingly the Appellant s licence was suspended by the impugned order. 6. The Ld.Counsel for the Appellant has submitted as follows:- (I) THAT the CB Order No.11/2021, dated October 13, 2021 issued by the Respondent under Regulation 16(1) of Customs Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any other law for the time being in force. The Proper Officer for verification of the truth and authenticity of such declaration by the exporter along with compliance with the restriction or prohibition, if any, is the Appraiser/Superintendent of Customs who is responsible for assessment and clearance of such consignments in terms of Notification 40/2012-Cus (NT). Therefore, the mandate of mis-declaration, with respect to valuation and admissibility of export incentives if any, and the corresponding penal liability arising out of the same is not attributable to the Appellant as a Customs Broker and the Department has got its absolute liberty to deal with the same as far as the exporters are concerned as per the prescribed Rules and Regulations in this regard. (IV) THAT the learned Principal Commissioner has erred in failing to appreciate that the affirmation in respect of M/s C.S. International (Chandra Kala Sharma) is a tissue of blatent lies that the firm is not in existence in the given address. The same affirmation has purportedly been made based on the visit of one State Tax Officer of West Bengal GST Sri Surojit Bhattacharjee who has formed his opinion that this conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through a middle agent, Md. Shakil Ahmed. Though they had enquired from Md.Shakil Ahmed regarding non-realization of Bank Realization Certificates of these consignments they were informed that foreign remittance would be realized in coming days. The CB had no idea of the valuation of the consignments and never tried to know the real value of the Ball Bearings and never in a position to comply with the relevant provision of Customs Act. Ground No.2. The Appellant violated Regulation 10(m) as it failed to discharge its duties as a Customs Broker with utmost speed and efficiency and without delay. It is assertion that the Customs Broker has a responsibility to protect Government revenue which it failed to do in the present case; that over- valuation of exports to defraud the Exchequer by getting the very high Input Tax Credit and export related incentives. Ground No.3. The Appellant violated Regulation 10(n) inasmuch as one of the exporters M/s C.S. International (Chandrakala Sharma) has been found to be non-existent at the declared place of business and the Appellant was required to verify the correctness of IEC, GSTIN No., identity of his clients and functioning of its clie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever tried to know the real value of the Ball Bearings. Appellant is not required to do so, therefore no allegation under Rule 10(d) prima facie sustain. 12. As far as Regulation 10(m) is concerned, the allegation that the Appellant had processed the Shipping Bills with over-valued goods resulting in loss to the Exchequer. This is a very serious allegation not substantiated by any facts in the impugned order. The Shipping Bills once assessed are final unless they are appealed against before the Commissioner(Appeals). Therefore to allege the value is wrong, Shipping Bills must be appealed against before the Commissioner(Appeals) and the assessments modified. Nothing in the records shows that this has happened. The powers of the proper officer under section 28 also do not extent to modify assessments where no duty was short paid and the only thing is for an appeal to be filed against the assessment of Shipping Bills. If indeed, the goods were heavily over-valued in the Shipping Bills and cleared, the claim should rest on the officer, who cleared them. The Customs Broker has no right or responsibility to modify the value in a Shipping Bill under the law. 13. As far as the Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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