TMI Blog2023 (6) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... rations, be entitled to a whit more than that; nor is there any controverting of the claim of the exporter to be entitled to the refund. The logical and sequential arrangement of the obligations devolving on customs brokers does not admit of any scope to cite the same fact as act of omission or commission manifesting as breach thereto of two, or more, of the prescriptions of proper conduct. Of the four charges brought against the appellant, the first deals with responsibility to advice conformity with applicable law and consequence of discard of advice; the second with only ascertained information to be furnished to a client. Undervaluation is a determination on the part of the customs authorities and, in the absence of finding that the purported transaction price is supplemented by additional consideration or is partially reimbursed to exporter, any revision is merely exercise of empowerment to restrict benefit or recover duty; recourse to some rule of valuation is part of procedure of assessment which the licencing authority can hardly fasten on customs broker as normative conduct. Even the difference in weight, at about 10% of that declared, is so marginal, and with no dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation 18 of Customs Brokers Licensing Regulations, 2018. 2. Proceedings were initiated in accordance with regulation 17 of Customs Broker Licencing Regulation, 2018 consequent upon receipt of report that examination of consignments covered by shipping bills no. 9107154/24.11.2018, no. 9104269/24.11.2018 and no. 9104315/24.11.2018 filed by them, on behalf of M/s Tristar Trading, for export of 2990 kgs of parts and accessories of vehicles showed the goods to be 3328 kgs of parts of two wheelers with the declared heading no. 8714 2090 of ITC (HS) Classification, intended for carriages for disabled persons , corresponding neither to the declared, not actual, description of goods that was also, as per report of the chartered engineer, overvalued. The facts are not really material to proceedings under Customs Broker Licencing Regulations, 2018 though alleged discrepancies are; show cause notice dated 1st January 2021 had been issued to the appellant proposing revocation of licence, along with forfeiture of security deposit, and imposition of penalty, envisaged by regulation 14 and regulation 18 respectively of Customs Brokers Licensing Regulations, 2018 for breach of regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 46 and 50 of Customs Act, 1962 are adjuncts to the machinery provision of section 17 of Customs Act, 1962 and, unless demonstrated lack of meticulousness has had the consequence, or potential, of derailing assessment or warranted privilege, proposal for revoking of licence is hasty, illconsidered and disproportionate. Likewise, application of mind should be evinced by invoking the appropriate mandate of conduct as having been breached in a given factual matrix. We are constrained to embark upon this narration as, all too often, we are confronted with a buffet of facts and allegations that, taken together, may suffice to interdict a particular consignment and to penalise under section 112 or section 114 of Customs Act, 1962 in a episodic proceeding without impinging upon continuation of cross-border transactions often losing sight of the finality in proceedings to terminate livelihood warranting conformity with the intent of the Regulations. 5. The competent authority, viz., Commissioner of Customs (General), Mumbai has found that the discrepancies in the shipping bills suffice to conclude that the appellant had failed to advice his client to comply with all the requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned goods does not fall within the obligation expected of a customs broker. 7. We have heard Learned Authorised Representative who submitted that the enquiry report has held the irregularities committed by the customs broker as proved and that the detriment of revocation, along with forfeiture of deposit and imposition of penalty, is not disproportionate considering the breach of conduct. 8. The facts ascertained during the examination, or unearthed in the subsequent investigations, and emplaced, at times, in the notice commonly to evince breach of several of the enumerations of proper conduct in regulation 10 of Customs Brokers Licensing Regulations, 2018 are incorrect declaration of weight, value and description, resort to common heading of ITC (HS) classification and lack of conformity of heading incorporated in shipping bills with that in invoices of the supplier of the goods. In addition, reliance has been placed on the admission of the Director of the appellant-company that they did not interact directly with the client. It would not be out of place to take note that the refund of tax, consequent upon completion of export, is limited to tax discharged on procurement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision is merely exercise of empowerment to restrict benefit or recover duty; recourse to some rule of valuation is part of procedure of assessment which the licencing authority can hardly fasten on customs broker as normative conduct. Even the difference in weight, at about 10% of that declared, is so marginal, and with no discrepancy in declaration of quantity, as to have little impact on diligent completion of assessment. That goods appear to be not parts of motor vehicles but of two wheelers and that declared classification does not conform to either is not relevant to the factum of exports or of any benefit derived therefrom and to invoke detriment for any distortion of statistics therefrom is to burden customs brokers with custodianship of statistical integrity; that surely is not the objective of the Regulations and it is absurd to believe that a system which has invested heavily in data warehousing and analytics would be anachronistic enough to found its statistical veracity on such peripheral source. We fail to perceive any justification for concluding from these discrepancies that unascertained information has been provided to a client. The lack of any discussion on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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