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TMI Blog2024 (8) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... has proceeded to uphold the charge on the supposition that exporter could not have executed overvalued exports without collusion from the appellant. That bridging of supposition with breach of obligation is too far-fetched to accept. The easiest of misdeclaration to undertake is overvaluation of export goods for the requirement to repatriate export proceeds confers advantage of presumption of correctness of contracted value combined with incomparability of local prices; it would appear that unnecessary premium has been placed on the need of a fellow conspirator for such overvaluation to succeed. The conclusion in the impugned order has nothing to do with obligation and is also not founded on any fact on record. The charge of having breached regulation 10(d) of Customs Broker Licencing Regulations, 2018 has been inappropriately held to be proved. The alleged breach of obligation to forbear from withholding information contained in any order, instruction or public notice from a client who is entitled to receive them has been established with the finding that details of local procurement said to be prescribed in circular no. 16/2009-Cus dated 25th May 2009 was in breach; however, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable under the penal empowerment of Customs Act, 1962 and breach of the obligations of customs broker or contravention of the restrictions entailed to the licence in the Customs Broker Licencing Regulations, 2018 is sought to be established by connecting those to the factual matrix of the offence. Thus it is that each of the obligation is perceived as armoury provided for terminating practice of the profession instead of as a charter espousing, more primarily, protection of clients who are constrained to rely on the select few authorized under delegated empowerment and, to some extent, as shield of the customs administration. Thus, it is that the imputation of misconduct almost invariably has as its locus an alleged failure of client consciousness which is then appended, any which way, to the several enumerated obligations as cause and consequence to the licencee. The present proceedings, arising from challenge to revocation of licence and forfeiture of security deposit under regulation 14 of Customs Broker Licencing Regulations, 2018 along with imposition of penalty under regulation 18 of Customs Broker Licencing Regulations, 2018 in order [order-in-original no. 40/CAC/PCC(G)/S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k and over valuing the export goods and mis-declaring in Shipping Bill, . that the appellant herein was liable to be charged with breach of obligation in regulation 10(d), regulation 10(e), regulation 10(f), regulation 10(k) and regulation 10(n) of Customs Broker Licencing Regulations, 2018 has only brevity to commend it as statement of imputation of misconduct and by, thereby, also leaving it to the designated inquiry authority to fill in the gaps, is contrary to the pre-requisite of proceedings that, unlike recoveries of duties of customs which are episodic, prejudice continued practice of a profession. There is no allegation of non-export of goods or misdescription of goods or even that taxes indicated in the invoices had not been paid. 3. The foundation of the proceedings, in which the appellant has ostensibly been fastened with such overwhelming role as to warrant termination of licence to practice a profession, is the handling of three shipping bills out of thirty one consignments involving claim of ₹3,31,000 as drawback on imitation jewellery exported by M/s World Wide Export between 2012 and 2017 that relies upon statements of M/s Moize Ahmed Ali Angoothiwala, partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f licence to practice a profession are not scrutinized by us but here a different set of circumstances presents itself. Exports of 2012-17 are impugned in investigations that was, initially, found to warrant recourse to suspension in 2022 and in which investigations had been underway since 2015. The allegation of overvaluation is not so critical to these proceedings as it would have been in adjudication for confiscability of offending goods, denial of drawback arising therefrom and imposing of fiscal penalty but the other, and even more fundamental, allegation of export goods having been procured against invoices of persons other than suppliers as being, purportedly, contrary to rule 3 of Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 without bringing the normative into focus essential for determination of breach has made it a matter of concern to us. There is neither reference to the requirement of such invoice of supplier for processing of claim for drawback or of any machinery provision in chapter X of Customs Act, 1962 and any Rules framed by Central Government under delegated authority therein and nor, indeed, of defiant disregard of any direction to furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned goods offending. We have heard Learned Counsel for appellant and Learned Authorised Representative at length. While the sum and substance of the arguments of Learned Authorised Representative rested upon the foundations upon which the inquiry officer held the charges as proved and, thereafter, relied upon by the licencing authority in the impugned order, a few submissions of Learned Counsel are particularly significant. It was intimated by him that the appellant had handled only three out of the thirty one consignments and that none of these were exports against claim for drawback. It was submitted by him that they had not been summoned at any stage in connection with the three shipping bills and that, despite the unduly long elapse of time since the consignments had been handled, they were still able to furnish some records to the investigators. It was also pointed out that there was no allegation of having handled the consignments without authorization and that the finding of not having verified the operational details of exporter is based on assumptions. 6. We find that, insofar as the charges are concerned, the impugned order has put together unrelated facts and rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lacking in such determination. Even as saving grace, there is no factual narration of any information that led to alleged overvaluation. Thus it is that regulation 10(e) of Customs Broker Licencing Regulations, 2018 has been incorrectly held as proved. 8. The alleged breach of obligation to forbear from withholding information contained in any order, instruction or public notice from a client who is entitled to receive them has been established with the finding that details of local procurement said to be prescribed in circular no. 16/2009-Cus dated 25th May 2009 was in breach; however, this fact had not been set out in the notice issued to appellant. There is also no reference to the said circular in the report of the inquiry officer. It would, thus, appear that the inspiration which prompted the licencing authority to refer to this mandate was not tested by offering opportunity at any stage to explain irrelevance of its contents to free shipping bills filed for exports by the appellant or to explain that it had indeed been provided. This is tantamount to introduction of evidence after conclusion of all proceedings in which appellant had participated and is, this, untenable basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved, and none at all in the consignments handled by the appellant, by the exporter and lack of any evidence of such negligence in the part of the appellant, we are unable to accept the conclusion of not having been diligent in antecedent verification. As we have already premised, it was much too late, and the stakes were much too little, for conducting any worthwhile investigation. To erect such a charge on such fragile foundations is sure recipe for it to fail to find favour. Thus, there is no basis for alleged contravention of regulation 10(n) of Customs Broker Licencing Regulations, 2018, as found in the impugned order, to be affirmed by us. 11. The charges of breach of regulation 10 of Customs Broker Licencing Regulations, 2018 do not sustain. There is no case that the goods had not been exported or evidence even that the impugned goods had not been manufactured out of duty paid inputs. The drawback involved in all the exports during the said period by M/s World Wide Export is not of such high order as to warrant penalties and detriments that were heaped upon them in the impugned order and those handled by the appellant were not under any claim at all. In these circumstances, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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