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TMI Blog2023 (7) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensated the appellant herein for facilitating those exports. After suspension of the licence under regulation 16 of Customs Broker Licencing Regulations, 2018 on 29th July 2021 upon receipt of 'offence report', which was continued by order dated 21st October 2021 after 'post-decisional' hearing, show cause notice dated 21st October 2021, proposing revocation of customs broker licence, forfeiture of security deposit furnished and imposition of further penalty, was issued and inquiry authority appointed for the next stage of proceedings. 2. On completion of enquiry, the appellant was placed on notice of intention to accept the report and, after personal hearing, Principal Commissioner of Customs (General), Mumbai vide order [order no.17/CAC/PCC(G)/SJ/CBS Adj. dated 26th May 2022] revoked the licence, besides forfeiting the entire security deposit, under regulation 14 of Customs Brokers Licensing Regulations, 2018 and imposed a further penalty of Rs. 50,000/- under regulation 18 of Customs Brokers Licensing Regulations, 2018. The erasure of the appellant from the rolls of 'customs brokers' was actuated by the finding that the charge for breach of regulation 10(d), 10(n) and regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not have interacted with them to advise them of their obligations. Reliance was placed by the Learned Counsel on the decision of the Tribunal in K S Sawant & Co v. Commissioner of Customs (General), Mumbai [2012 (284) ELT 363 (Tri.-Mumbai)] which held that '5.1 From the records, it is clear that the business in respect of the client M/s. Advanced Micronics Devices Ltd., was brought in by Shri Sunil Chitnis, who claims himself to be a sub-agent of the appellant CHA. The statements of Shri Badrinath and Shri Sunil Chitnis amply proves this fact. The question is, merely because the appellant procured the business through an intermediary who is not his employee, can it be said that he has sub-let or transferred the business to intermediary. The Tribunal in the case of Commissioner of Customs v. Chhaganlal Mohanlal & Co Ltd. [2006 (203) E.LT 435 (Tri. - Mum.)], held that if the Customs clearance has been done through intermediary and business was got through intermediary, the same is not barred by the provisions of CHALR, 2004 and it cannot be stated that the appellant has sub-let or transferred his licence. In the case of Krishan Kumar Sharma v. Commissioner of Customs, New Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai)], in Krishan Kumar Sharma v. Commissioner of Customs, New Delhi [2000 (122) ELT 581 (Tribunal)] and in Jai Ambe Logistics v. Commissioner of Customs (General), NCH, Mumbai [2015 (327) ELT 730 (Tri.-Mumbai)]. 6. Insofar as the allegation for breach of obligation under regulation 10(n) of Customs Brokers Licensing Regulations, 2018 is concerned, reliance was placed on the decision of the Tribunal in Anax Air Services Pvt Limited v. Commissioner of Customs (Airport & General), New Delhi [final order no. 50002/2022 dated 3rd January 2022 disposing off appeal no. 50987 of 2021 against order [order-in-original no. 114/MK/Policy/2021 dated 15th June 2021 of Commissioner of Customs (Airport & General), New Delhi. '44. As far as the export incentives such as drawback are concerned, they are received on the basis of the shipping bills cleared by the Customs and the corresponding Export General Manifest (EGM) filed by the Master of the Vessel or his agent confirming that the container is loaded on to the ship. Regardless of whether the remittance is received (for which a time of one year is available) or not, the exporter gets drawback into his account immediately from the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi in Kunal Travels (Cargo) v. Commissioner of Customs (I &G), IGI Airport, New Delhi [ 2017 (354) ELT 447 (Del).] has held 11. The obligations of the CHA are stipulated in Regulation 13 of the CHALR-04 : xxxxxx 14. Any act to defraud presupposes the intention to obtain something fraudulently. In the present case, the appellant (through its proprietor) has all along contended that the documents were filed unauthorizedly by a person incompetent to do so; it has not defended the action of Mr. Lalit Katoch; it claims ignorance and innocence of the contents of the consignment; it objects to the very filing of the two shipping bills by either Mr. Katoch or any person authorised on its behalf, hence there cannot be a presumption of its deliberate act/intention to defraud. There is no evidence of active facilitation of clearance of the consignment through customs by the appellant, hence, no mens rea can be inferred to defraud the government for obtaining duty drawback through a fraudulent transaction. Consequently, the appellant cannot be faulted or punished in the manner it has been.' 8. Reliance placed by the licensing authority on the decision of the Hon'ble High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs Act, 1962 or for resorting to in particular eventualities but are intended to be elaboration of such expression occurring in any provision of the statute among which is section 50 of Customs Act, 1962 requiring any one of these to make entry thereof - whether it be actual owner, beneficial owner or purported exporter. As any of them is permitted to file the bill, the obligation of a customs broker does not extend to ascertainment of all of them. 11. Consequently, any person can be an exporter and any person may act on behalf of the exporter and, thereby, become a client of customs brokers. What we see here are several loose threads - loose threads that do not curtain off the threshold ingress but, at the same time, these loose threads have been twisted together to form a noose that does not hold. We find that, in circumstances set out above, we are unable to concur with the finding of the licensing authority that obligation under regulation 1(4), 10(d) and 10(n) of Customs Brokers Licensing Regulations, 2018 have been violated by the appellant. 12. The appellant had obtained, even if not directly, necessary documentation of the exporter on record and there is no evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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