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TMI Blog2023 (11) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... e faulted. Violation of Regulation 10 (a) of CBLR - HELD THAT:- Apparently no authorization letter in favour of the appellant from M/s. Linwood Sales could be produced on record. Hence, there are no infirmity when violation of Regulation 10 (a) of CBLR has been confirmed against the appellant. Violation of Regulation 10 (b) of CBLR - HELD THAT:- The G card holder of the custom broker has admitted that he was signing the blank papers required to transact the business in customhouse and was handing over the same to M/s. Guha Sarkar. These observations since have not been refuted by the appellant who rather opted to remain absent are sufficient to confirm the violation of Regulation 10 (b) of CBLR of 2018 by the appellant. Violation of Regulation 10 (d) of CBLR of 2018 - HELD THAT:- Since the custom broker is responsible for all acts and means of his employees during their employment as per Regulation 13 (12) of CBLR of 2018, it was mandatory for the appellant to advice the exporter to comply with the provisions of the Customs Act, else to have brought to the notice of the Dy. Commissioner Customs about the non-compliance. But neither the appellant nor his G card holder has ever broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and two hundred fifty eight) and total drawback claimed was Rs.51,18,864 (Fifty one lakh eighteen thousand eight hundred sixty four). 2. The goods under these containers were examined in the presence of Shri Souvik Guha Sarkar, representative of M/s Linwood Sales Pvt. Ltd., Shri Chandra Sekhar Hore, 'G' card license holder, M/s SKH Freight Logistics Pvt. Ltd., Customs Officers and two independent witnesses. The FOB value of 1,14,480 pieces of 'Women's Leggings' attempted for exports under 6 Shipping Bills was reassessed and ascertained at Rs.81,60,134/- and Rs.7,99,693/- only. 3. DRI intercepted another three containers bearing Nos. EISU 3799380, EISU 3759475 and EMCU 3684964 which said to contain Readymade Garments Babies Inner . Nine Shipping Bills were filed by M/S SKH Freight Logistics Pvt. Ltd. on behalf of the exporter M/s Linwood Sales Pvt. Ltd. against these three containers. The total declared FOB value was Rs.5,78,09,000/- (Five crore seventy eight lakh nine thousand). The total drawback claimed was Rs 54, 96, 615/- (Fifty four lakh ninety six thousand six hundred Fifteen). The goods were attempted to be exported through Kolkata Port. The goods were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akesh Kumar, Authorised Representative for the respondent Revenue. 7. Ld. Consultant for the appellant has submitted that: The Appellant was granted Custom Broker license by the Commissioner of Customs (General), New Custom House, New Delhi under regulation 7(1) of CBLR, 2013 on 06.09.2013 bearing No. R-46-DEL/CUS/2013(PAN: AASCS5286K) which was valid upto 05.09.2023 to transact business at Delhi Customs. The Appellant was permitted to transact the business in Kolkata Customs also from 27.10.2016. The DRI after receiving the impugned intelligence recorded the statement of Mr. Chander Sekhar Hore having G Card holder of the appellant. Based thereupon the action has been taken against the appellant. It is submitted that the said statement is neither made the RUD to SCN nor the copy of the same was ever supplied to the appellant. Furthermore it is not coming out from the text of the OIO that under which Act and Section it has been recorded. 8. It is further submitted that M/s. Guha Sarkar Co. was not in operation and he was working as agent for importers/ exporters through different Customs broker including M/s.SKH Freight Logistics Pvt. Ltd. It is very much clear from the statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House. He is not only the agent of importer/exporter but also the agent of the Department. Hence, he is liable to safeguard the interest of both the importers as well as the customs department. The Department, therefore, poses a lot of trust in the CHA who in turn is responsible to ensure appropriate discharge of such trust. 13. It is impressed upon that in the present case of proven fraud the CHA has not even opted to come forward. Apparently he has allowed his license to be used by someone else at the behest of yet another person. Resultantly, there is no infirmity in the findings in the order under challenge. Ld. Departmental Representative has relied upon the following case laws:- (i) Decision of Hon ble Supreme Court in the case of Commissioner of Customs vs. K.M. Ganatra Company reported in 2016 (332) E.L.T. 15 (S.C.). (ii) Decision of this Tribunal in the case of Evershine Customs C F Private Ltd. vs. Commissioner of Customs reported in 2021 (TIOL) 482 CESTAT, Delhi. (iii) The earlier decision of the Tribunal in the case of Millennium Express Cargo Pvt. Ltd. vs. Commissioner of Customs, New Delhi reported as 2017 (346) E.L.T. 471 (Tri.-Del). With these submissions the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness in appellant s name. The said act is highly impermissible in terms of Regulation 1(4) of CBLR, 2018. In the light of absence of appellant to bring evidence to falsify the evidence brought against him or to cross-examine the witnesses who had deposed about using his license and authority to facilitate a fraudulent export transaction, the findings arrived at by the adjudicating authority cannot be faulted. 16. It is the appellant s own case, through Shri Chandra Shekhar Hore, that the exporter was not known to them. They had never met with him nor ever visited his premises. Apparently no authorization letter in favour of the appellant from M/s. Linwood Sales could be produced on record. Hence, we do not find any infirmity when violation of Regulation 10 (a) of CBLR has been confirmed against the appellant. 17. As already observed above, the business in customs station was transacted though in the name of the appellant but apparently by Shri Souvik Guha Sarkar though the appellant has argued that they never authorised said Shri Sarkar but simultaneously it is an apparent fact that the impugned export transaction was not transacted in person by the Custom Broker despite it was pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce could be brought on record to falsify these findings. In the circumstances, we have no reason to differ from the findings that the appellant has failed to make the appropriate enquiries of their clients prior transacting the business in customhouse station. Hence, the findings confirming the violation of Regulation 10 (k) and 10 (n) are held sustainable. 20. The appellant has challenged the order in question on the ground of it being barred by time. But present is a case of proven fraud of availing false duty draw backs after exporting the cheap/scrap fabric at highly inflated price. Fraud vitiates everything as was observed in the case of Evershine Customs C F Private Ltd. (supra). The time line otherwise is to avoid the serious repercussions of curtailing the right to carry on the trade or profession by a genuine and diligent custom broker. The object of the Regulations (CBLR) is that it contemplates a timely action but simultaneously contemplates an action against the erring brokers. 21. We draw our support from the decision of this Tribunal in the case of M/s. Swastic Cargo Agency vs. Commissioner of Customs reported as 2023 (2) TMI 677 wherein the decision of Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true, as has been decided in a number of cases, that the Customs Broker is not expected to do the impossible and is not expected to physically verify the premises of the importer or doubt the documents issued by various Governmental authorities for KYC, it is equally true that the Customs Broker is expected to act with great sense of responsibility and take care of the interests of both the client and the Revenue. It is expected to advise the client to follow the laws and if the client is not complying, it is obligated under the Regulations to report to the Assistant Commissioner or Deputy Commissioner. Fulfilling such obligations is a necessary condition for the CB licence and it cannot be termed as spying for the department as argued by the appellant before us. It has also been argued that if it spies for the department, it will lose its business. It is evident from the facts of this case, that the appellant was not only aware of the benami Bills of Entry but has actually filed them with the full knowledge that they were benami and they were filed by Anil after a case of undervaluation has been booked by DRI against him. It is afraid of losing business because it has built its bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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