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TMI Blog2024 (7) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... e obligation of the appellant under Regulation 10 (d) to advise the client about the requirement of authorization. Instead of advising the client, the appellant filed the Shipping Bill for its export. The appellant s submission on this count is that the client had given a declaration that Triethanolamine is not a SCOMET item and had also given a declaration that it was being exported for use in soil testing. This submission cannot be accepted. Firstly, it is the appellant who should know the law and advise the client and the appellant cannot depend on the client to say if Triethanolamine was a SCOMET item or not. If the appellant had checked the list of SCOMET items, it would have been evident that it was clearly a SCOMET item. Secondly, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot even be said to be a mere oversight because the exporter had given a declaration stating that it was not a SCOMET item and therefore, the possibility of it being a SCOMET item was evident- all that the appellant had to do was to refer the policy where Triethanolamine was explicitly indicated as a SCOMET item. He should then have advised the exporter accordingly - there is no evidence of the appellant profiting from this attempted export of Triethanolamine valued at about Rs. 500/. Action has been taken against both the exporter and the appellant under the provisions of Customs Act and penalty of Rs. 5,000/- was imposed on the appellant under section 114(i). The appellant has been without a licence since 26.7.2023 which means out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 (FOB) to Mozambique. 4. Triethanolamine is one of the Specialised Chemicals, Organisms, Machinery, Equipment and Technology (SCOMET) items which have dual use- several normal industrial or other uses and also use in manufacture of Weapons of Mass Destruction (WMD). Export of such SCOMET items is not prohibited but is restricted under the Foreign Trade Policy and they are listed in Appendix 3 to Schedule 2 of ITC (HS) classification. List 1C of this Schedule lists chemicals whose export requires an export authorisation if they are exported to countries other than those listed in Table 1. Undisputedly, Triethanolamine is listed at S. No. 17 of the list as SCOMET Entry IC017 and Mozambique was not listed in Table 1. Therefore, the undispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the appellant, the Commissioner passed the impugned order holding that the appellant had violated Regulation 10(d) of CBLR 2018 and therefore, revoked the Customs Brokers licence, forfeited the security deposit and imposed a fine of Rs. 50,000/-. 8. Learned counsel for the appellant made the following submissions: a) There was no mens rea and the Triethanolamine was covered by the exporter s undertaking which stated that it was not a SCOMET item and that it would be used for soil testing; b) The appellant was never investigated and no adverse evidence is taken on record by the department against it; c) The value of Triethanolamine was less than Rs. 500/- d) The SCN was issued after 255 days of receiving the offence report; e) The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. 13. The restriction on export in this case is evident as it was part of the Foreign Trade Policy and export of Triethanolamine to Mozambique required an authorization. When the client wanted to export this chemical to Mozambique, it was the obligation of the appellant under Regulation 10 (d) to advise the client about the requirement of authorization. Instead of advising the client, the appellant filed the Shipping Bill for its export. 14. The appellant s submission on this count is that the client had given a declaration that Triethanolamine is not a SCOMET item and had also given a declaration that it was being exported for use in soil testing. This submission cannot be accepted. Firstly, it is the appellant who should know the law an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued on 6.2.2023, i.e., within 80 days of the receipt of the correct offence report. We, therefore, find the submission of the appellant that the SCN was issued after 255 days of receiving the Offence Report contrary to facts recorded in the impugned order. The SCN was, therefore, not time-barred. 18. On the question of proportionality of action against the appellant, we find an attempt to export SCOMET item without the required authorization is a serious violation. In this case, it cannot even be said to be a mere oversight because the exporter had given a declaration stating that it was not a SCOMET item and therefore, the possibility of it being a SCOMET item was evident- all that the appellant had to do was to refer the policy wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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