TMI Blog2023 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The presence of such person to handle off-location stuffing is not an offence and presence in a customs station cannot but be implied permission owing to regulatory stipulations of entry into such places. Therefore, it cannot be said that appellant had utilized unauthorized persons in discharge of its obligations in a customs station. Failure to verifiy the antecedents and correctness of Importer Exporter Code (IEC) Number - HELD THAT:- 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. In failing to acknowledge so in the finding on the doubt, required to be complied therein, the same cannot be said to exist through alternative Regulations. It is directed that the matter be taken up for disposal restricted only to alleged breach of regulation 10(n) of Customs Broke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of advice reported, due diligence in ascertaining correctness of information imparted to client could not be demonstrated, could not discharge duties with speed and efficiency and failed to verify correctness of details and identity of client. According to the notice, it had been admitted by both the proprietor and the power-of-attorney holder that they had neither met the client nor undertook any of the processes mandated for export from the country. It was also admitted by the customs broker that all activities were undertaken by an unauthorized person. 4. The statement of Shri Nityanand Suresh Pujari established that documentary formalities for his usual export trade was handled by M/s Absolute Cargo through one Shri Mehul Bhanushali and that physical aspects of clearance were handled by himself. Insofar as the impugned goods were concerned, the usual export modus operandi was resorted to on advice and planning by some other persons for which he was to be recompensed. The goods in the container, stuffed at his premises, had not been subjected to any supervision there or any check before clearance. The inquiry authority held all the charges to be proved which was followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained copies of PAN card, Aadhaar Card, GST registration certificate, IEC certificate from all the three exporters concerned. Further we find that in the case of G.N.D. Cargo Movers cited supra, the Division Bench of the Tribunal had held in paras 5 6 as under :- 5. We further note that Regulation 11(e) requires the Customs House Agent to exercise due diligence to ascertain the correctness of any information which he imparts to clients with reference to work relating to clearance of cargo/baggage. Merely because the importer have accepted their mistake of misdeclaration of brand and quantity and have shown their willingness to pay differential duty, fine and penalty, it cannot be concluded that Customs Broker did not exercise due diligence to ascertain correctness of the information. If the said fact only is relevant for holding against the Customs Broker, then in each and every case of misdeclaration by the importer, it can be concluded that Customs Broker did not suitably informed his clients. There has to be some evidence on record to show that either the Customs Broker was aware of such misdeclaration and suppressed the same with a mala fide mind or he has taken effort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs (General), NCH, New Delhi [2019 (365) ELT 392 (Del)] holding that 4. The Court is of the opinion that there is some merits as far as the appellant s argument is concerned. In this case the Customs Authorities have not held that any clandestine material was brought or that the goods were misdeclared or the contraband was the subject matter of the Bill of Entry in question. The role of the appellant was merely one of a facilitator. There is no material on record to show that the KYC documents were fraudulent or incorrect or in any manner irregular. In these circumstances, to expect the CB holder to carry out further investigations and independent inquiry not only about the existence of importing firm but also about its real owner is beyond the mandate of the law. 7. Reliance was placed by Learned Counsel on the decision of the Tribunal in Cargo Concept (Bombay) Pvt Ltd v. Commissioner of Customs (General), Mumbai [2016 (344) ELT 954 (Tri-Mumbai)] which held, in near identical circumstances, that 6. We find that in the present case the offence on the part of exporter is that they misdeclared the goods inasmuch as readymade garment made of 100% cot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the exporter it is sufficient compliance of Regulation 13(a) of CHARL, 2004. As regard the allegation by the ld. Commissioner that signature on the authority letter was not tallying. We find that the ld. Commissioner has not made any efforts to investigate in the matter of signature therefore, it was not conclusively proved that authority letter is not genuine. Ld. Commissioner in one hand contended that the signature on the letter is not tallying and on the other hand said that authority letter is in respect of earlier exports this itself contradicts his stands. We further observed that when the shipping bill was filed by the CHA and it has been accepted by the exporter, this fact itself shows that appellant has been duly authorized by the exporter for carrying out clearance work of exports consignments. As regard the violation of the Regulation 13(d) and (n), we find that ld. Commissioner held that there is violation under Regulation 13(d), contending that appellant was given CHA work not directly by the exporter but through one shipping line, therefore, appellant have never met to the exporter, accordingly appellant have not advised the exporter. In this regard, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges under Regulation 13(d) and 13(n) are also not proved. Therefore, we set aside the impugned order and allow the appeal by restoring the operation of CHA licence No. 11/617. 8. According to Learned Authorized Representative, the findings in the impugned order has clearly elaborated on the role of the customs broker but for whose manner of handling the transaction, the attempt to smuggle red sanders would have been a non-starter. It was contended that such customs brokers , by desisting in functioning in the manner in which they were obliged to, had forfeited their claim to continue in the business. It was further argued that the breach of obligations was so brazen as to come to no conclusion other than the detriments visited on the customs broker. 9. The appellant has furnished the authorization received by them and its provenance is not in dispute. The obligation in regulation 10(a) prescribes obtaining of authorization which is, undeniably, with them. From this, there can be no doubt that beach of regulation 10(a) of Customs Broker Licencing Regulations, 2018 has been incorrectly attributed to them. 10. It has been held that the appellant had, in fact, been awa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
