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TMI Blog2023 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 for export of 'Indian fresh onions' to Dubai by M/s Jhanvi Trading Co was filed on their behalf by the appellant and it appears that the entire work was handled by their power-of-attorney holder, Shri Janak Dhanji Danani, from whom the proprietor of M/s Absolute Clearing, Shri Varun Vipul Lapasia, came to know that container no. TRLU-1644026 had 13.01 MT of 'red sanders (Pterocarpus Santalinus)' concealed among the declared goods. Owing to this, the licence was suspended on 28th January 2021 and continued, in accordance with regulation 16 of Customs Broker Licencing Regulations, 2018 after 'post-decisional hearing', by order of 2nd March 2021. Proceedings were initiated under regulation 17 of Customs Broker Licencing Regulations, 2018 vide show cause notice dated 31st March 2021 alleging breach of regulation 10(a), 10(b), 10(d), 10(e) and 10(n) of Customs Broker Licencing Regulations, 2018. 3. The charges rest, principally, on the transactional engagement, or the lack, of the appellant with the ostensible exporter in the handling of the contracted shipment owing to which the prescribed authorization was not obtained, business was not transacted personally or through authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is guilty of violation of Regulation 17(d) of CBLR, 2013. This finding is factually incorrect because in the statements of Mr. Mohammad Yusuf Siddique, G-Card holder and Power of Attorney of the appellant at Mumbai, he has stated in his statement dated 25- 5-2017 that he had interacted with the IEC holders. Further we find that as per the Commissioner, the appellant has not brought to the knowledge of the Department that IEC holders have lent their IECs to other persons. We find that there is no evidence on record brought by the Department to show that the appellant had knowledge regarding the lending of IEC. Further we find that the lending of IEC is not an offence under the Customs Act, 1962 as held in various decisions cited supra. As far as allegation against the appellant that he had not verified the antecedents of IEC holders, we find that as per Regulation, the Customs Broker is to verify the correctness of IEC number, identity of client and functioning of them at the declared address using reliable, independent, authentic documents, data or information. Further physical inspection of the premises of the importer or exporter is not required under the law as well as under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentity of the concerned exporter/importer, in the opinion of this Court is to be read in the context of the CHA's duty as a mere agent rather than as a Revenue official who is empowered to investigate and enquire into the veracity of the statement made orally or in a document. If one interprets Regulation 13(o) reasonably in the light of what the CHA is expected to do, in the normal course, the duty cast is merely to satisfy itself as to whether the importer or exporter in fact is reflected in the list of the authorized exporters or importers and possesses the Importer Exporter Code (IEC) Number. As to whether in reality, such exporters in the given case exist or have shifted or are irregular in their dealings in any manner (in relation to the particular transaction of export), can hardly be the subject matter of "due diligence" expected of such agent unless there are any factors which ought to have alerted it to make further inquiry. There is nothing in the Regulations nor in the Customs Act which can cast such a higher responsibility as are sought to be urged by the Revenue. In other words, in the absence of any indication that the CHA concerned was complicit in the facts of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration made by the exporter. We also found that the appellant were paid Rs. 500/- per document for their clearance in respect of exports of the impugned goods, there is nothing on record to show that the appellant have benefited extraneously over and above the actual CHA fees i.e., Rs. 500/- per document. In view of this position there is no doubt that appellant CHA was nowhere involved in any misdeclaration of the goods made by the exporter. As regard the authorization letter, we find that the said charge was made by the Commissioner only on the basis of statement of one Shri T. Dongre, who said to have stated that they did not possess the authority letter from their client, M/s. Cosmos Enterprises. In this regard, we find that appellant during the proceedings indeed submitted the authorization letter before the Commissioner, though said letter was in respect of earlier eight shipping bills. We are of the view that once the exporter gave the authority letter and thereafter the business is continuing, the same authority letter will be sufficient for carrying out the business in future also therefore, we do not see that in each and every consignment or each and every shipping bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the appellant. Therefore, this charge under Regulation 13(n) does not establish. We have gone through the judgments cited by the rivals and considered the same, however we do not need to discuss each judgment as every case of revocation of CHA licence is based on fact of individual case. As per our above discussion, we are of the considered view that the impugned order is not sustainable, hence the same is set aside. Appeal is allowed.' and, insofar as receipt of authorization is concerned, in Natraj Shipping Agency v. Commissioner of Customs (General), Mumbai [2014 (308) ELT 103 (Tri-Mumbai)] thus '7. On perusal of the impugned order, we find that the learned Commissioner has held that the importer has filed blank papers and give ICE to some other person to import and he was not having any knowledge of the importation of the goods. On the contrary, the learned Commissioner has not given any findings on the production of the original authorization issued by the real importer and he has not doubted the signatures on the documents. In these circumstances, we hold that the appellant was having proper authorization for clearance of the impugned consignments. As the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 'client' without any reference to the identity of the person intended by such description and, to the extent that it is not specific to an exporter or importer, as the case may be, could well be read as expanding the scope of the Regulations to infer that it was not intended to be restricted to exporter or importer. A business model may not traverse the same contours as a law and it would not be proper to hold, save where the law is explicit, that it should. The client could be an intermediary and there is no allegation that such client was not satisfied in the manner intended by the Regulations. Hence, the sustaining of these charges does not meet the test of law. 11. Insofar as regulation 10(n) of Customs Broker Licencing Regulations, 2018 is concerned, it is not alleged that the said ascertainment had not been done but that, in the absence of contractual engagement with exporter, the appellant could not have carried out the necessary verifications. This argument is not tenable as the appellant could yet have not been relieved of that responsibility which should have been discharged on the basis of data availability. There is, indeed, no finding that the premises did not exis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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