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TMI Blog2024 (11) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 07.02.2023 passed by the Additional Commissioner and continues from pages 135 to 173 of the appeal memo. After having reproduced the order passed by the Additional Commissioner in these many pages, the show cause notice, in paragraph 4 which has also been reproduced above, merely states that it appears that the Customs Broker violated these four Regulations and these four Regulations have been reproduced in the same paragraph. It clearly transpires that the show cause notice does not give any reason as to why the said four Regulations of the 2013 Regulations had been violated. The order impugned in this appeal is, therefore, liable to be set aside for this reason alone as the show cause notice is the very foundation of an order. The order that has been passed by the Commissioner of Customs can also been examined on merits. The Commissioner of Customs, after reproducing the reply filed by the appellant, merely observes that the Customs Broker had not obtained the KYC document directly from the exporter and secondly billing M/s Satyam Aviation Pvt Ltd. instead of the exporter would constitute a violation of Regulation 11 (n). Thus, it is not possible to sustain the finding reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. 4. The Additional Commissioner adjudicated the show cause notice by order dated 07.02.2023 and the operative part of the order is: (I) I hereby reject the claimed Drawback to the tune of Rs. 1,90,84,449/- (Rupees One Crore Ninety Lakh Eighty Four Thousand Four Hundred Forty Nine Only) in respect of Shipping Bills (Table 4 of the Show Cause Notice) being inadmissible under Section 75 of the Customs Act, 1962 read with in terms of Rule 17 of Customs and Central Excise Duties Drawback Rules, 2017 since the export proceeds for the said goods has not been realized by or on behalf of the said Exporter within nine month time as prescribed under FEMA Act, 1999 Foreign Exchange Management (Export of Goods Services) Regulations, 2015 and RBI Master Circular issued in this regard. (II) I hold that the export goods (with claim/availment of duty drawback) in respect of shipping bills as mentioned in Table-4 of the Show Cause Notice with declared FOB value of Rs. 19,36,38,839/- (Rs. Nineteen Crore Thirty Six Lakh Thirty Eight Thousand Eight Hundred Thirty Nine Only) are liable for confiscation under Section 113(i) and 113(ia) of the Act ibid due to misdeclaration in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice, is a mere reproduction of the order dated 07.02.2023 passed by the Additional Commissioner. 8. After reproducing the order passed by the Additional Commissioner in paragraph 3, the show cause notice mentions the following facts in paragraphs 4, 5 and 6. 4. Whereas from the above. it appears that the CB has violated the following regulations of CBLR 2013 for the reasons narrated in preceding paras:- Regulation 11(d) of CBLR 2013: advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, Regulation 11(e) of CBLR 2013: exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage: Regulation 11(n) of CBLR 2013: verify antecedent, correctness of Importer Exporter Cle (IFC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information; Regulation 17(9) of CBLR 2013: The Customs Broker shall exercise such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the whole amount of security deposit furnished by them; (iv) I impose a Penalty of Rs.50,000/- on M/s Global Links (PAN: AADFG5566E) under Regulation 22 of CBLR, 2013. (emphasis supplied) 10. It is this order dated 30.10.2023 passed by the Commissioner of Customs that has been assailed in this appeal. 11. It is pertinent to note that though the show cause notice refers to violation of sub-clauses (d), (e), (n) of Regulation 11 as also Regulation 17(9) of the 2013 Regulations, the impugned order upholds the violation of Regulations 11(n) and 17(9) only of the 2013 Regulations and a categorical finding has been recorded by the Commissioner of Customs that the appellant did not violate Regulations 11(d) and 11 (e) of the 2013 Regulations. 12. Dr. Prabhat Kumar, learned counsel for the appellant submitted that the order passed by the Commissioner of Customs deserves to be set aside for the reason that the time limit prescribed in Regulation 20(1) of the 2013 Regulations has not been adhered to by the department. Elaborating this submission, learned counsel submits that the Commissioner of Customs was required to issue the notice in writing to the Customs Broker within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. 18. Regulations 20 (1) of the 2013 Regulations, as noticed above, provides that the Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of the offence report. Even if the submissions of the learned counsel for the appellant that the show cause notice should be treated as the offence report and not the order dated 07.02.2023 passed by the Additional Commissioner, then too it was necessary for the appellant to specifically state the date on which the Commissioner of Customs received the show cause notice. All that has been submitted by the learned counsel for the appellant is that since the copy of the show cause notice was also marked to the Commissioner of Customs and the office is situated in the same building, it must be pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order that has been passed by the Commissioner of Customs can also been examined on merits. In regard to violation of Regulation 11(n) of the 2013 Regulations, the reply filed by the appellant, as contained in the order, is reproduced below: (iii) There is no contravention of regulation 11(n) of CBLR as there no allegation of the incorrectness of Importer Exporter Code (IEC) number or Goods and Services Tax Identification Number (GSTIN) and functioning of Exporter at the declared address. The IEC number of the Exporter has been found to be genuine. Similarly, the Exporter has been found to be functioning at his declared address. Hence, there is no contravention of regulation 10(n) of CBLR and as such the show cause notice may be quashed. 25. The Commissioner of Customs, after reproducing the reply filed by the appellant, merely observes that the Customs Broker had not obtained the KYC document directly from the exporter and secondly billing M/s Satyam Aviation Pvt Ltd. instead of the exporter would constitute a violation of Regulation 11 (n). The relevant portion of the order passed by the Commissioner of Customs is reproduced below: Therefore, in the given matrix of facts, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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