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TMI Blog2024 (12) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... ck Rules, 1995 that intended empowering the Central Government to device a schedule of rates of drawback in lieu of engaging in computation of drawback on each incident of export. It was also held by this Tribunal, stating it clearly that the benefit, even if 'undue , derived by the exporter is not of such gravitas as to merit revocation of license to practice a profession and, more specifically, when the licensing authority itself appears to have discountenanced proper conjecture of the provision of law that supposedly made the impugned goods offending. Accordingly, the Tribunal had set aside the Order of the Principal Commissioner in suspending the appellants CB license - in the present appeals before us too, the findings of the learned Principal Commissioner in respect of charges against Regulations 10(d), 10(e) and 10(f) of CBLR, 2018 does not sustain on the same analogy adopted by the Tribunal in the case of appellants-CB on similar exports made by the same exporter M/s World Wide Export. It is also found that the Hon ble High Court of Delhi has held in the case of KUNAL TRAVELS (CARGO) VERSUS COMMISSIONER OF CUSTOMS (IMPORT GENERAL) NEW CUSTOMS HOUSE, IGI AIRPORT, NEW DEL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Bills (S/Bs) during the period 2012- 2017 by the said exporter, in which the appellants CB had handled 6 shipping bills. Therefore, statements were recorded from the persons concerned with these exports including Shri Moize Ahmed Ali Angoothiwala, partner of M/s World Wide Export, Shri Hari Kizhakedath Ramakrishnan, Executive of CB M/s C.V. Karia Clearing Forwarding Pvt. Limited. There were nine such CBs invo0lved in all 31 S/Bs, and the appellants herein is one such CB who had filed six S/Bs for the exporter M/s World Wide Export, in the past involving over valuation of export goods. From the investigation conducted by the SIIB(X) and offence report received from SIIB(X), the jurisdictional Principal Commissioner of Customs (General), Mumbai-I had concluded that there is a prima facie case against the appellants for having contravened Regulations 10(d), 10(e), 10(f) and 10(n) of CBLR, 2018. Accordingly, they had initiated show cause proceedings by issue of notice No. 44/2022-23 dated 10.03.2023 for initiating inquiry proceedings under Regulation 17 ibid, against violations of CBLR as above. 2.2 Upon completion of the inquiry, a report dated 08.12.2023 was submitted by the Inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension of CB license and forfeiture of security deposit vide SCN dated 17.03.2023, adjudication order had already been passed by the learned Principal Commissioner vide Orderin- Original CAO No. 50/CAC/PCC(G)/SJ/CBS Adj. dated 28.11.2023, wherein he had dropped the charges levelled against the appellant-CB in that case customs brokers do not play any role in post export/clearance activities such as tracking the Bank Realization Certificates, claiming of drawback. 3.3 Further, learned Advocate stated that the appellants CB did not have any prior knowledge about the fact that the exporter is going to mis-declare or overvalue the goods; they had filed the declarations for export under various S/Bs as per the documents received through the exporters. He further stated that for the acts of misdeeds done by the exporters, 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 Courts of Bombay and Delhi, in the respective cases mentioned below: (i) John K Mathew Vs. Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner 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; (f) not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Customs authorities, as the case may be, from a client who is entitled to such information; . 6.2 We find that the Principal Commissioner of Customs had come to the conclusion that the appellants CB had violated the above stated sub-regulations (d), (e) and (f) of Regulation 10 ibid as they did not advice the exporter properly on the need to file declaration that they are not the dealing with export of Readymade garments for which the Circular No.54/2001 was relevant and in the present case, the export goods were of imitation jewellery; they did not have the knowledge about circular No.16/2009 dated 25.05.2009 and did not inform the exporter to file necessary declarations for claiming drawback; details of name and complete address of traders from whom the goods were procured by exporter were not furnished and thus CB provided wrong i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked after postdecisional hearing by order of 10th March 2023 though, oddly, only after issue of notice under regulation 17 of Customs Broker Licencing Regulations, 2018 on 9th March 2023 proposing action under regulation 14 and regulation 18 of Customs Broker Licencing Regulations, 2018. The lack of clarity on the part of the licencing authority about the client in connection with which breach of obligations on the part of customs broker occurred does place the integrity of the final disposal now impugned before us in jeopardy and the strategy to rescue it from the brink by revocation of suspension in anticipation of challenge to proceedings does not, from manifest lack of clarity which is anathema to the seriousness of recourse to detriment empowered by the Customs Broker Licencing Regulations, 2018, advance the integrity of the process. The notice culminating in the impugned order is all about exports effected by M/s World Wide Export and the inference in the show cause notice from 13. From the investigation it appears that it is unlikely that CB M/s Beejay Clearing and forwarding agency was unaware that he was receiving goods based on fictitious bills. Had the CB seen these docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appear that the cornerstone of the case against the appellant are reports portraying overvaluation and of non-verification of address of exporter The jeopardy to the proceedings, from not connecting those factual dots in the proceedings of inquiry and before the licencing authority, appears to have been underestimated rather glaringly. 4. Normally, the offence in import or export leading to proceedings for termination of 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 there from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bold enough to say that the benefit, even if undue , derived by the exporter is not of such gravitas as to merit revocation of licence to practice a profession and, more especially, when the licencing authority itself appears to have discountenanced proper conjecture of the provision of law that supposedly made the impugned goods offending 6. We find that, insofar as the charges are concerned, the impugned order has put together unrelated facts and rendered findings that, consequently, are illogical and untenable. It is seen that the charge of not having advised the client to comply with Customs Act, 1962 and rules and regulations thereof is not founded on any allegation that advice sought had not been rendered and nor is there an allegation that customs broker is expected to explain the entirety of the law to the client; either the allegation is vague or the obligation is vague with neither contingency furthering the case against the appellant. It is, probably, owing to this conceptual commotion that the licencing authority has proceeded to uphold the charge on the supposition that exporter could not have executed overvalued exports without collusion from the appellant. That bridg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer. 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 basis for upholding the charge of having breached regulation 10(f) of Customs Broker Licencing Regulations, 2018. 9. The allegation that the appellant had failed to maintain records and accounts has been upheld on the findings that appellant had not responded to summons and had failed to furnish details called for. The contention of appellant right from the beginning had been that no summons had even been issued to them in connection with investigation into the exports of M/s World Wide Export and, at no stage, did the inquiry officer or the licencing authority ever counter this response with any record to the contrary. Indeed, as we have noted supra, it is moot if the suspension would have been revoked in such circumstances. In any ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, we find ourselves unable to uphold the impugned order which is set aside to allow the appeal. Therefore, in the present appeals before us too, the findings of the learned Principal Commissioner in respect of charges against Regulations 10(d), 10(e) and 10(f) of CBLR, 2018 does not sustain on the same analogy adopted by the Tribunal in the case of appellants-CB on similar exports made by the same exporter M/s World Wide Export. 8.1 Learned Principal Commissioner of Customs (General) had come to the conclusion that the CB had not violated the provision of Regulation 10(n) ibid, on the ground that the exporter was in existence and available at the declared address during the export. Further, the exporter had timely responded to the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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