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TMI Blog2024 (4) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... om house agent in respect of two shipping bills for export of goods with descriptions as : "i) SCREW UNIT WITH SLIDE BEARING WGR (R)-MRvide Shipping Bill no.1566930 dated 15/12/2017 and ii) FGRL (R)-60 DD PARALL, SHAFT HEL GER AGIT vide shipping bill no. 2146192 dated 11/1/2018." 3. On the basis of the investigation, the license of the appellant was suspended vide Order dated 16.12.2022 under Regulation 19(1) of Customs Brokers Licensing Regulations, 2013 (CBLR) which was subsequently confirmed vide Order dated 12.01.2023. Show cause notice dated 23.01.2023 was issued proposing the impugned punishments for violation of the provisions of Regulation 11(d), 11(e) and 11(n) of CBLR, 2018. The Inquiry Officer vide Inquiry Report dated 21.02.2023 recorded the findings that the appellant failed to discharge the obligations in terms of the Regulations. The Adjudicating Authority by the impugned order has confirmed the revocation of the Customs broker license under Regulation 20(7) read with regulation 18 and 22 of CBLR, forfeiture of security deposit and penalty of Rs.50,000 under Regulation 22 read with Regulation 20 of the CBLR. The present appeal has been filed challenging the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods exported were falling under SCOMET list and the same were exported without obtaining the license from the DGFT and for which the action taken against the appellant under the provisions of CBLR is sustainable. 8. To verify whether the export items as described in the export documents would fall under the SCOMET List, we need to first examine the amendment introduced in the SCOMET List. Notification No. 29/2015-20 dated 21.09.2017 was issued by the DGFT whereby amendments were introduced in Appendix -3 of SCOMET List. The entry number 3D00615 is reproduced below: "SCOMET Entry 3D006 shall be substituted as follows:- (1) Fermenters capable of cultivation of microorganisms or of live cells for the production of viruses or toxins, without the propagation of aerosols, having a total internal volume of 20litres or greater; (2) Components designed for such fermenters, as follows:- a. cultivation chambers designed to be sterilized or disinfected in situ; b. cultivation chamber holding devices; or c. process control units capable of simultaneously monitoring and controlling two or more fermentation system parameters (e.g. temperature, pH, nutrients, agitation, dissolved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Regulations, that for export of goods, license should have been obtained nor did he brought the matter to the notice of the Customs Authorities. The stand of the Revenue is that in the statement recorded on 26.08.2020, the Operation Manager of CHA admitted that they never verified the product or parts manufactured in the factory and also not verified the uses of the export product and their parts. The relevant contents of the statement is quoted below:- "That when specifically asked to confirm whether the SCOMET items require licence from the DGFT they replied in affirmative and stated that as per their knowledge, if the product is coming under SCOMET list, then the licence from DGFT is required for clearance of the same; that when specifically asked and asked to confirm whether M/s. Dyna Biotech is exporting fermenters and their components; that when specifically asked to confirm the export of Fermenters and their parts made by M/s. Dyna Biotech, will require the export authorization for the export or not, in reply they have confirmed that the export of Fermenters and their parts made by M/s.Dyna Biotech will require the export authorization for the export; that when speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant where they have admitted that they never verified the product or parts manufactured in the factory nor verified the use of the export product and their parts. The allegation do not fall within the obligation as provided in Regulation 11(e) which requires the CHA to exercise due diligence to ascertain the correctness of information which he imparts to a client with reference to any work related to clearance of cargo baggage and hence, invocation of Regulation 11(e) is unsustainable. We would like to take note of the observations made by the Delhi High Court in Kunal Travels (Cargo) Vs. CC (I&G), IGI Airport, New Delhi - 2017 (354) ELT 447 (Delhi) that "the CHAs due diligence is for information that they may give to its client and not necessarily to do a background check of either the client or the consignment." Taking note of the said decision of the Delhi High Court, this Tribunal in Perfect Cargo & Logistics Vs. C.C. (Airport & General), New Delhi - 2021 (276) ELT 649 (T-Del.) analysed the role which is required to be played by the CHA in discharge of his obligations under the Regulations as under:- "27. It is clear from the aforesaid decision of the Delhi High Court that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Regulation 11(n) of the CBLR and hence we reject the findings that the appellant failed to discharge their obligation under Regulation 11(n). Reference to the decision in Commissioner Vs. Shiva Khurana - 2019 (367) ELT 550 (Delhi) while dealing with the provisions of Regulation 13(o) of CBLR, 2004, which is identical to Regulation 11(n) of CBLR, 2013, where the Delhi High Court observed as under:- "7. This Court is of the opinion that the impugned order is justified in the facts and circumstances of the case. The reference to the verification of "antecedents and correctness of Importer Exporter Code (IEC) Number" and the identity of the concerned exporter/importer, in the opinion of this Court is to be read in the context of the CHA's duty as a mere agent rather than as a Revenue official who is empowered to investigate and enquire into the veracity of the statement made orally or in a document. If one interprets Regulation 13(o) reasonably in the light of what the CHA is expected to do, in the normal course, the duty cast is merely to satisfy itself as to whether the importer or exporter in fact is reflected in the list of the authorized exporters or importers and posses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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