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TMI Blog2024 (12) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuance of specific intelligence received by Nhava Sheva Preventive Unit (NSPU), R&I division of Principal Commissioner of Customs(Preventive), regarding customs duty evasion in import consignment covered in Container No.CLHU8380450 lying in Seabird CFS was put on hold and further investigation ware carried out. It was found that the import consignment was imported by M/s Empara Multiventures Private Limited vide Bill of Entry (B/E) No. 2640242 dated 05.02.2021. The goods declared in the said B/E was 232500 pieces of 'back cover' (mobile accessories) with a declared value of Rs.6,00,548/-. During the course of examination under panchnama proceedings on 12.02.2021, it was found that the said imported consignment contained 2,80,000 pieces of 'tempered glass screen' of value re-determined as Rs.8,23,608/-. Therefore, the department had concluded that there was a gross mis-declaration of description and quantity of goods, in the import consignment for which the B/E was filed through the appellants CB, and had initiated further investigation. Further, it was also found that in one more import consignment under B/E No. 2697872 dated 09.02.2021, it was filed by some unauthorized person to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed that not meeting the importer personally and procuring the documents through intermediary cannot form the grounds for alleged violation of Regulations 10(e) and 10(n) ibid. 3.3 Further, learned Advocate stated that the appellants CB did not have any prior knowledge about the fact that the importer is going to mis-declare the description and quantity of the goods; they had received the documents through middle men Shri Ibrahim Hirani, who knew the importer, and they had duly verified the existence of the importers through the statutory documents in the manner prescribed under CBLR. He further stated that for the acts of misdeeds done by the importers, the appellants CB cannot be held liable. Thus, he claimed that the appellants did not contravene any of the Regulations ibid. 3.4 In support of their stand, the learned Advocate had relied upon the following decisions of the Tribunal and the judgement of the Hon'ble High Court of Bombay, in the respective cases mentioned below: (i) K.S. Sawant & Co. Vs. Commissioner of Customs (General), Mumbai - 2012 (284) E.L.T. 363 (Tri.-Mumbai) (ii) Bajaj Enterprises Vs. Commissioner of Customs (General), Mumbai - 2017 (347) E.L.T. 675 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vise 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; (e) 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; ... (n) verify correctness of Importer Exporter Code (IEC)number, Goods and Service Tax Identification Number (GSTIN), identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information; ... Section 1 (4) Every license granted or renewed under these regulations shall be deemed to have been granted or renewed in favour of the licensee, and no license shall be sold or otherwise transferred. 13. Engagement or employment of persons.- ... (12) The Customs Broker shall exercise such supervision as may be necessary to ensure proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment. 6.2 We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the description of goods given correctly and fully in the Bill of Entry/classification declaration laying claim to some exemption was in the nature of a claim made on the basis of the belief entertained by the appellant and therefore, cannot be said to be a mis-declaration for the purpose of Customs Act. On the basis of our analysis as above and on the basis of above judgement of Hon'ble Supreme Court, we are of the considered view that the conclusion arrived by the Principal Commissioner of Customs (General) on this issue in the impugned order is not supported by any evidence or factual detail, to fasten the liability on the part of the appellants CB and thus the impugned order stating that the appellants have violated Regulation 10(d) ibid is not sustainable. 8.1. Learned Principal Commissioner of Customs (General) had come to the conclusion that the CB had violated the provision of Regulation 10(e) ibid, as established in the inquiry proceedings that the appellants had not at all interacted with the importer and thus did not exercise due diligence in ascertaining the correctness of any information which they impart to a client. From the records we find that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir client as they did not verify the address of their importer. Thus, he concluded that the appellants CB have not been careful and diligent in undertaking KYC verification and thus violated Regulation 10(n) ibid. 9.2 In this regard, we find that CBIC had issued instructions in implementing the KYC norms for verification of identity, existence of the importer/exporter by Customs Broker in Circular No. 9/2010-Customs dated 08.04.2010, and verification of any two documents among specified documents is sufficient for fulfilling the obligation prescribed under Regulation 10(n) of CBLR, 2018. Thus, we do not find any legal basis for upholding the alleged violation of Regulation 10(n) ibid by the appellants in the impugned order. 9.3 We find that in the case of M/s Perfect Cargo & Logistics Vs. Principal Commissioner of Customs (Airport & General), New Delhi 2021 (376) E.L.T. 649 (Tri. - Del.), the Tribunal had decided the issue of KYC verification of the importer/exporter by the Customs broker and the requirements specified in the CBLR, 2018. "34. The basic requirement of Regulation 10(n) is that the Customs Broker should verify the identity of the client and functioning of the cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance with respect to Regulation 10(n) ibid. 10.1 We also find that as regards the timelines to be followed in the entire process of adjudication of the suspension/revocation of CB license under CBLR, 2013/CBLR, 2018 by Customs authorities, the Hon'ble High Court of Bombay has laid down certain guidelines for its interpretation in the case of Principal Commissioner of Customs (General), Mumbai Vs. Unison Clearing P Ltd., 2018 (361) E.L.T. 321. The relevant portion of the judgement in the above case is extracted below: "The whole purpose of the CBLR-2013 being to frame a time line so that undue delay in the proceedings can be avoided, and the balance will have to be struck between the strict adherence to the said time schedule to such an extent that even a day's delay would prove to be fatal and render the entire action invalid and on the other hand, to grant such a discretion to the revenue to continue the said action of suspension of licence for an indefinite period depriving the Customs brokers of their right to carry on business on the basis of the licence, on a spacious ground that the charges levelled against him are being enquired into. Neither of these two extreme situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when such time limit is crossed, the period subsequently consumed for completing the inquiry should be justified by giving reasons and the causes on account of which the timelimit was not adhered to. This would ensure that the inquiry proceedings which are initiated are completed expeditiously, are not prolonged and some checks and balances must be ensured. One step by which the unnecessary delays can be curbed is recording of reasons for the delay or non-adherence to this timelimit by the Officer conducting the inquiry and making him accountable for not adhering to the time schedule. These reasons can then be tested to derive a conclusion whether the deviation from the time line prescribed in the Regulation, is "reasonable". This is the only way by which the provisions contained in Regulation 20 can be effectively implemented in the interest of both parties, namely, the Revenue and the Customs House Agent." 10.2 In the instant case, the alleged offence in importation of goods took place in respect of imports which was reported by a offence report of the details to the jurisdictional Principal Commissioner by NSPU/R&I on 10.02.2021 and on that basis the jurisdictional Principa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant's CB license has been passed on 12.05.2023. The learned Principal Commissioner explained that the delay is on account of the inquiry proceedings in which the appellants CB had taken time to give their written submissions, but such delay cannot be fatal to outcome of injury and cannot neutralize the actions of omission and commission already committed by the CB. 10.4 The prescribed time under CBLR for timely completion of inquiry proceedings right from the beginning i.e., issue of SCN within a period of 90 days from the date of receipt of offence report, submission of inquiry report within 90 days of issue of SCN, passing of order by the Principal Commissioner of Customs within 90 days of receipt of inquiry report was neither followed nor given credence to. The inordinate delay in the inquiry proceedings in this case has not been properly explained in the impugned order; and the learned Principal Commissioner had put the entire blame on the appellants CB. We are of the view that such a reasoning given by learned Principal Commissioner of Customs (General), particularly in the background of the facts that the inquiry authority had gave a personal hearing on 08.12.2021 to the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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