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TMI Blog2023 (5) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... in which he indulged in fraudulently fabricating the documents and on the basis thereof he managed to obtain bogus PAN card, IEC code from DGFT and on that basis he opened a Bank Account. Neither the Income Tax Department verified the genuineness of the election voter card before issuing the PAN card nor DGFT while issuing the IEC code raised any objections on the authenticity of the documents - In this scenario to attribute any responsibility on the CHA to have verified the authenticity of these documents or the identity of the exporter seems to be too much and unpractical. It is absolutely impossible to expect from a CHA to act with such diligence that he could ascertain the veracity of the documents which even the departmental authorities could not ascertain. There are no hesitation in arriving at a conclusion that in the facts of the present case no violation can be attributed on the appellant being a Custom House Agent. The allegations that the appellant did not verify the KYC documents of M/s Anand Enterprises which was a bogus firm created with forged documents and that he abetted the export of readymade garments are unsustainable in as much as the allegations of forging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof, IEC Code was obtained from DGFT, New Delhi and the bank account was opened in Punjab National Band , New Rajender Nagar, New Delhi. The real Shri Anand Sharma PAN No. DLCPS7098Q appeared in DRI office and denied having any firm in the name of M/s Anand Enterprises, he also denied that he had ever exported any goods in any firm. During the course of investigation, no firm in the name of M/s Anand Enterprises was found existing on the declared address. It thus appeared that Shri Anand Sharma (PAN No. FXNPS4247E) had created the bogus firm with intention of availing the duty drawback of huge amount of Rs. 1,88,23,316/- of making fraudulent export of readymade garments. 4. Summons were issued to M/s Anand Enterprises which were received back by the postal authorities with remarks no such firm existed . Search was also conducted at M/s KVS Cargo, CHA, appellant herein, however, no incriminating documents were recovered from his premises. 5. The department issued show cause notice dated 09.05.2018 to M/s Anand Enterprises, M/s KVS Cargo and M/s Him Logistics Pvt Ltd. calling upon them as to why: (a) The exported Readymade Garments, covered under subject 52 shipping bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te appeals were filed by the two appellants before the Commissioner (Appeals), however, both the appeals were rejected and the penalty imposed was confirmed vide order dated 29.09.2022. Hence two separate appeals have been filed by M/s KVS Cargo M/s Him Logistics Pvt Ltd. against the order of the Commissioner (Appeals) before this Tribunal. 9. I have heard learned counsels representing the two appellants, namely, KVS Cargo and also M/s Him Logistics and also the authorised representative for the Revenue. 10. The allegations against the two appellants is for violation of the provisions of regulation 11 (n) of the Customs Broker Licensing Regulation, 2013, (CBLR) which cast duty on the custom broker to verify the antecedents of the exporter and the KYC documents before facilitating clearance of goods. Regulation 11(n) reads as under; 11(n) 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; 11. During the course of hearing, learned counsel for the appellant has brought to my notice, the annexures fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral) Vs. KVS Cargo [2019(365) ELT 395] and it is as follows, Para 3. In this regard the Court notices that both the authorities - the Commissioner as well as well as CESTAT appeared to have imposed almost impossibly high standards upon the CB holder who is expected to not only verify the correctness of the documents with reference to the publicly available material what also carry out independent investigation. No doubt, the CB holder acts as an interface between the Customs Authorities and facilitates the task of a consignee / importer, yet to such an independent agent - who is not a public servant or in any way connected with the Customs Department to act as a public trustee, is beyond what is contemplated. 14. In view of the principle enunciated by the High Court of Delhi, I have no hesitation in arriving at a conclusion that in the facts of the present case no violation can be attributed on the appellant being a Custom House Agent. The allegations that the appellant did not verify the KYC documents of M/s Anand Enterprises which was a bogus firm created with forged documents and that he abetted the export of readymade garments are unsustainable in as much as the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on M/s Him Logistics by the impugned order is untenable. 17. During the hearing of the appeal, both the appellants have referred to the earlier decisions in their own matters. This Tribunal in Final Order No. 51601-51610/2018 vide order dated 24.04.2018 in the case of M/s Him Logistics Pvt Ltd. and Ors vs. Commissioner of Customs (Prev), New Delhi, wherein similar allegations were made that the appellants did not verify the antecedents of the said firm facilitated imports in the name of bogus firms, set aside the penalty imposed under Section 112 or 114 of the Customs Act. Similarly, in the case of M/s Him Logistics Pvt Ltd. vs. CC, New Delhi, the Tribunal vide Final Order No. 53248-53250/2018 dated 06.11.2018, dealt with identical situation where M/s Him Logistics was neither the CHA nor the importer and has merely referred the importer to M/s KVS Cargo since their licence was under suspension. Though in that case the allegation was that the appellant paid the customs duty on behalf of the importer, however, the Tribunal held that they have not done any act of omission or commission attracting penalty under section 112 of Customs Act. 18. I may now refer to the two deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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