9911796707
TMI Blog2025 (1) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Consequently, there is no violation of Regulation 10 (b). Violation of Regulation 10 (n) - HELD THAT:- The impugned order has concluded that the appellant was not clear whether the B/E had been filed under Section 69 or Section 59 of the Customs Act. This cannot be the reason for revoking the CB license. The appellant filed the B/E as per procedure and same has been subsequently cleared by the Customs Department. It is noted that as per section 146 of the Customs Act, the role of a Customs Broker is related to the business of import or export of the goods. The obligation of the appellant was only to facilitate clearance of goods for warehousing at the Customs port. Admittedly, the appellant was not responsible for the deposition of the goods to the warehouse. It is also noted that the persons controlling the importer firm had acted on their own accord to defraud the revenue, and there is no allegation or evidence that the appellant had advised or aided their nefarious activity. In this context, support taken from the Supreme Court s judgment in Collector of Customs, Cochin vs Trivandrum Rubber Works Ltd., [ 1998 (11) TMI 127 - SUPREME COURT ] wherein the Hon ble Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for deposition, but the goods were not found. Meanwhile, vide letter F. No. GEN/CB/292/2023-CBS-0/ PR COMMR-CUS-GEN-Zone-1-Mumbai dated 25.05.2023 was received forwarding an offence report dated 09.05.2023, for taking appropriate action against the appellant along with the investigation report dated 06.07.2023. Accordingly, the CB license was suspended vide order-in-original No. 36/ZR/Suspension/Policy/2023 dated 16.06.2023 under Regulation 16(1) of the CBLR, 2018. A show cause notice dated 04.09.2023 was issued to the CB and on receipt of the Inquiry report dated 28.11.2023, and vide the impugned order dated 23.02.2024, the CB license was revoked. Being aggrieved by the said order, the appellant has filed the present appeal. 3. Learned counsel for the appellant submitted that the Appellant's role was limited to filing of B/E for warehouse upon submission of Triple Duty Bond with security duly executed by Importer, in the bond section. Since, there was neither assessment nor examination of the goods as B/E was RMS facilitated, an automatic out of charge from customs was given by the system. After out of charge, goods were handed over to the employee of Importer at the gate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, duly executed by the Importer, which was handled and submitted to the bond section of the Commissionerate by Dilip Shelar, H-Card Holder. Further, the bill of entry was registered under RMS informed vide ICEGATE's email dated 12.12.2022 @ 7:05pm and no assessment and examination as per RMS was prescribed for the consignment and therefore, the goods were directly allowed for warehousing and Out of Charge was given on 13.12.2022 and after out of charge, goods were handed over to the employee of Importer at the gate of CFS Apollo. It is pertinent to mention here that CB's role was limited to only filing of the B/E and he was not authorized by Importer to deposit of the goods in the warehouse and thus, the employee of the importer i.e. Balu Ithape collected the goods. Therefore, observation of Ld. Respondent that the Appellant did not attend the customs clearance is perverse and unreasoned. 3.2 The Learned Counsel further contended that the Regulation 10 (d) stipulates that a Customs, Broker shall advice 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the SCN nor the impugned order has alleged that the Appellant had the knowledge of said activity and therefore, any contravention which has occurred after the clearance of the goods cannot be attributed to the CB thus, no violation of CBLR, 2018 can be invoked in such cases. 3.5 Learned counsel further submitted that there is a finding that the appellant might have been cheated by the H-card holder, but only because there was alleged delayed response to the customs, does not form a ground for revocation of CB license, as there is no finding that the Appellant in connivance with Dilip Shelar has acted in this manner. Moreover, the diversion of goods took place on 13.12.2022 right after clearance and the cancellation of H-card has not affected the said investigation in any manner. Therefore, the said finding is vague and ambiguous and cannot be assailed to sustain revocation CB license. In support of, learned counsel relied upon the following judgements:- M/s R.P. Cargo Handling Services V. Commissioner of Customs (I G), New Delhi Customs Appeal No. 50490 of 2019. Buhariwala Logistics V. Commissioner of Customs (I G), New Delhi 2016 (331) E.LT. 633 (Tri. - Del.). Him Logistics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant attempted to defend their actions, but contradictions in statements and evidence raised doubts about the appellant s credibility and compliance. The purpose of granting a license to a customs broker is to ensure responsible and compliant conduct while facilitating import and export transactions, which the CB failed to uphold in this case. Overall, the department argues that the CB's actions amounted to serious violations of customs regulations, compromising the integrity of the customs clearance process and necessitating appropriate disciplinary action. In support of his submissions, learned AR relied upon the following decisions:- Baraskar Brothers vs. Commissioner of Customs (General), Mumbai 2009 (244) ELT 562. Commissioner of Customs vs. K.M. Ganatra 2016-TIOL-13-SC-CUS. Commissioner of Customs, Jaipur vs. Naresh Kumar Meena 2018 (360) ELT 60 (Raj.). Jasjeet Singh Marwah vs. Union of India 2009 (239) ELT 407 (Del.). Skytrain Services vs. Commissioner of Customs (Airport General), New Delhi 2019 (369) ELT 1739 (Tri.-Delhi). 6. We have heard the Ld Counsel and the Ld AR for the department and perused the case records. The issue before us is whether the alleged violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the goods had been released based on the said NoC. We find that the appellant had filed the Bill of Entry for Warehouse for re-export purpose, as is evident from the copy submitted before us. This clearly evidences that the appellant was aware that as the NoC was not available for the imported goods, hence the goods could not be cleared for home consumption. It has also been submitted before us that subsequently, the said goods were released as the NoC for all the 133 items imported vide the said Bill of Entry. Further, we take note of the fact that the said Release Order was received from the Competent Authority after the personal hearing held by the Inquiry Officer appointed under CBLR, 2018 It is on record that the goods had received the required NoC. The impugned order has concluded that the appellant was not clear whether the B/E had been filed under Section 69 or Section 59 of the Customs Act. This cannot be the reason for revoking the CB license. The appellant filed the B/E as per procedure and same has been subsequently cleared by the Customs Department. We note that as per section 146 of the Customs Act, the role of a Customs Broker is related to the business of import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of customs duty. 18.2. The Appellant has stated that he relied upon the result of verification of the original Importer Exporter Code (hereafter 'IEC'), which were mandatorily supplied on the functional address of the importer. It is stated that the IEC number was duly verified by the Appellant from the website of Directorate General of Foreign Trade (hereafter 'DGFT') and found the same to be valid. The IEC number was standing in the name of the importer firms and the physical addresses mentioned therein duly matched with the declared address furnished by the importer firms. The said fact of valid IEC has not been disputed by the Respondent. 18.3. In this regard, it would be relevant to refer to the judgment of a Coordinate Bench of this Court in Kunal Travels (Cargo), wherein this Court held that when an importer firm holds an IEC, there is a presumption attached that the KYC of the importer by physical verification of the address would have been done by the Customs authorities. The relevant portion of the judgment in Kunal Travels (Cargo) (supra) reads as under: 12. Clause (e) of the aforesaid Regulation requires exercise of due diligence by the CHA regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proof of locus standi of the exporter. The CHA is not expected to do a background check of the exporter/client who approaches it for facilitation services in export and imports. Regulation 13 (e) of the CHALR 2004 requires the CHA to 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 (emphasis supplied). The CHAs due diligence is for information that he may give to its client and not necessarily to do a background check of either the client or of the consignment. Documents prepared or filed by a CHA are on the basis of instructions /documents received from its client /importer /exporter. Furnishing of wrong or incorrect information cannot be attributed to the CHA if it was innocently filed in the belief and faith that its client has furnished correct information and veritable documents. The misdeclaration would be attributable to the client if wrong information were deliberately supplied to the CHA. Hence there could be no guilt, wrong, fault or penalty on the appellant apropos the contents of the shipping bills. Apropos any doubt about the issuance of the IE Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
