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TMI Blog2024 (5) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... s found that the Customs Broker had failed to comply with the obligations cast upon them under the provisions of Regulation 10(n) of CBLR, 2018. 3. During verification/identification of 'Risky Exporters' by the respective GST Commissionerate, several exporters were found to be non-existent at their registered addresses, whose export consignments were handled by the appellant. On physical verification of identification of the Risky Exporters viz. M/s.Jupiter Exports, M/s.D.N. Enterprises and M/s. Kunj Textiles were found to be non-existent. Therefore, it appeared that the Customs Broker had not bothered to follow KYC guidelines as prescribed under the Regulations. By the impugned order, the Commissioner, Customs in exercise of powers under Regulation 14 and 18 read with Regulation 17(7) of CBLR, 2018 passed the impugned order, which is under challenge before us. 4. We have heard Ms. Vidhushi Subham, learned Counsel for the appellant and Mr. M.R. Dhaniya, learned Authdorised Representative for the Revenue and have perused the records of the case. 5. Learned Counsel for thea appellant submitted that the appellant acted with due diligence as the KYC documents were verified from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Logistics." The observations of the Tribunal are as under:- "17. It is undisputed that the GSTIN, PAN, IEC, and other documents obtained by the appellant as a part of the KYC were genuine documents and were issued by the officers concerned. In our considered view, if the GSTIN is issued by the officers to persons who did not exist at the time of verification it could mean that the officers have issued GSTIN to non-existent firms or that they had subsequently either stopped operating from that address or that they had moved from that place and have not changed the address. In any of these scenarios, if the GSTIN was issued by the departmental officers to such a large number of non-existent persons, it shows either the lack of any due diligence on the part of the officers or an inherently flawed system of issuing GSTIN. The appellant cannot be faulted for trusting the GSTIN issued by the department. 18. Similarly, if the importer-exporter code6 issued by the Director General of Foreign Trade7 is wrongly issued to non-existent businesses and entities, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporters to ensure that they are functioning at the premises. When a Government officer issues a certificate or registration with an address to an exporter, the Customs Broker cannot be faulted for trusting the certificates so issued. It has been held by the High Court of Delhi in the case of Kunal Travels that "the CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect of clearance of goods through customs house and in that process only such authorized personnel of the CHA can enter the customs house area........ It would be far too onerous to expect the CHA to inquire into and verify the genuineness of the IE code given to it by a client for each import/export transaction. When such code is mentioned, there is a presumption that an appropriate background check in this regard i.e., KYC, etc. would have been done by the customs authorities....." (emphasis supplied). 22. The Customs Broker is not Omniscient and Omnipotent. The responsibility of the Customs Broker under Regulation 10(n) does not extend to ensuring that all the documents issued by various officers of various departments are issued correctly. The Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s it mean that the Customs Broker has to ensure that the officers have correctly issued these documents. In our considered view, Regulation 10(n) does not place an obligation on the Customs Broker to oversee and ensure the correctness of the actions by the Government officers. Therefore, the verification of documents part of the obligation under Regulation 10(n) on the Customs Broker is fully satisfied as long as the Customs Broker satisfies itself that the IEC and the GSTIN were, indeed issued by the concerned officers. This can be done through online verification, comparing with the original documents, etc. and does not require an investigation into the documents by the Customs Broker. The presumption is that a certificate or registration issued by an officer or purported to be issued by an officer is correctly issued. Section 79 of the Evidence Act, 1872 requires even Courts to presume that every certificate which is purported to be issued by the Government officer to be genuine. It reads as follows: "79. Presumption as to genuineness of certified copies. The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and authentic) could meet this requirement. While obtaining documents is probably the easiest way of fulfilling this obligation, the Customs Broker can also, as an alternative, fulfill this obligation by obtaining data or information. In the factual matrix of this case, we are fully satisfied that the appellant has fulfilled this part of the obligation under Regulation 10(n). 30. The fourth and the last obligation under Regulation 10(n) requires the Customs Broker to verify the functioning of the client at the declared address using reliable, independent, authentic documents, data or information. This responsibility, again, can be fulfilled using documents or data or information so long as it is reliable, independent and authentic. Nothing in this clause requires the Customs Broker to physically go to the premises of the client to ensure that they are functioning at the premises. Customs formations are only in a few places while exporters or importers could be from any part of the country and they hire the services of the Customs Brokers. Besides the fact that no such obligation is in Regulation 10(n), it will be extremely difficult, if not, totally impossible, for the Customs B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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