TMI Blog2023 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... on and in light of the unretracted admission of respondents/ CB s G-card Holder about involvement of CB in this transaction we hold that this is a case of not merely the violation of Regulation 10(n) but a case of fraud committed by CB and fraud vitiates everything. The cardinal principal which is enshrined in section 17 of the Limitation Act is that fraud nullifies everything. This Tribunal in the case of M/S. SWASTIK CARGO AGENCY VERSUS COMMISSIONER CUSTOMS, (AIRPORT GENERAL) , NEW DELHI [ 2023 (5) TMI 725 - CESTAT NEW DELHI] has held that this being a case of facilitating the fraudulent exports carried out and it being duly proved during the enquiry proceedings that the exporter were non-existent. CB is rightly held to have failed to verify the correctness of the document thereby violating its obligation as a customs broker even forfeiture of security deposit has rightly been ordered. In the light of the obligations conferred upon the CB by the Regulations CBLR, 2018 and the proven fraudulent act and conduct of CB on record, we hold that suspension of his licence is quite a proportionate penalty. The order under challenge is upheld to this extent. There is no violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by New Delhi Customs valid upto 12.04.2027. However, based upon the said licence, he was also issued licence bearing no. 11/2439 to work in Mumbai Customs also. The Mumbai licence was also revoked vide order no. 15/202021 CBS dated 07.09.2020 and pursuant to the said order the Delhi Commissionerate also vide Order No. 73/2020 dated 15.09.2020 had suspended the CB licence No. 33/2017. Subsequently, vide Order-in-Original No. 83 dated 05.10.2020 the said suspension has been revoked and the same was reviewed vide the aforementioned review order. Pursuant to the said order, the impugned appeal has been filed by the Department with the prayer for setting aside the said Order-in-Original dated 05.10.2020. The respondent CB have also filed the Cross Objections in this appeal on 16 March, 2020 praying for the dismissal of the Department s appeal. 3. The arguments on both sides have been heard. 4. It is mentioned by Ld. Departmental representative (DR) that the present case is pursuant to a specific intelligence received by NSPU Mumbai about the specific exporter M/s Fine Overseas. When NSPU, Mumbai wrote a letter dated 18.1.2019 to CGST, Meerut requesting to conduct verifications a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view Order dated 04.01.2021 and the grounds taken in the impugned appeal. 6. Learned authorized representative has relied upon following authorities; (i) K M Ganatra [2016-TIOL-13-SC-CUS] (ii) Millenium Express Cargo Pvt Ltd. Vs. Commissioner of Customs, New Delhi [2017 (346)ELT 471 (Tri.-Del)] 7. While rebutting these submissions, Ld. Counsel of the respondent CB mentioned that the exporter s authorized representative Shri Zoheb Moin/ the Manager appeared before the Mumbai Customs on 04.04.2019. He tendered his statement along with rent agreement of his firm s premises supplier s tax invoices, supplier s e-way bills and also stated that his firm is regularly filling GST returns. 8. As regard to the remittances, it is impressed upon that remittance of only one shipping bill has been realized. It is very much apparent from the statement of the G-Carg holder of CB Shri Vijay B. Rane that CB got KYC documents from the exporter. Hence, the order dated 15.09.2020 has wrongly held that CB has failed to comply with Regulation 10(e) and 10(n) of CBLR, 2018. Ld. Counsel impressed upon that based on both these statements, the suspension has rightly been revoked vide ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said licence he was issued licence by Mumbai Customs also to function at Mumbai ports. (iii) The CB has cleared 8 shipping bills for M/s Fine Overseas that too during a short period of August, 2018 to September, 2018 with FOB amount of Rs. 2,10,14,836/- (iv) The IGST refund of Rs. 54,90,378/- with respect to 8 shipping bills has already been claimed and availed from the Government Exchequer. (v) Remittance of Rs. 41,575 USD against one shipping bill was realized as per RBI data integrated in ICES. (vi) The exporter could not be served as was not found existing when summons were issued by the Meerut Commissionerate pursuant to the letter dated 18.01.2019 from NSPU Mumbai. (vii) The director of the exporter Shri Sirajul Kallu had never ever appeared before the customs authority. One Shri Zoheb Moin represented himself as the manager of the exporter in Mumbai Customs who appeared on 04.04.2019 and got his statement recorded on 04.04.2019 and on 12.07.2019 also. (viii) The proprietor of the customs broker, namely, Shri Rajesh Gupta, also had never appeared either before the Mumbai Customs or before the Delhi Customs. It is only his G-carg holder, namely, Shri Vija ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the order under challenge with respect to the alleged violation of 10(e) CBLR- 2018. In the cross objections filed by the respondent/assessee it has been conceded that there is no basis for alleged violation of Regulation 10(e) of CBLR. Findings to that extent in the order under challenge are confirmed. REGULATION 10(n) Regulation 10(n) reads as follows: 10(n) verify correctness of importer Exporter Code (IC) number, goods and service tax identification number (GSTIN), identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information; As per Board Circular No. 09/2010-Cus dated 08.04.2010 it is mandatory for the CHA to verify the genuineness of the Exporters/ firms at the declared address by using reliable, independent, authentic documents, data or information by submitting any two documents listed in the Annexure of the said Circular. 13. This regulation mandates a vigilant duty upon the customs broker that whosoever the exporter and importer reaches him for facilitating the respective import or export, he is supposed to verify the correctness of their import export code (IEC), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no evidence produced by CB to show that Shri Zoheb Moin was ever authorized by M/s Fine overseas or that CB himself was ever in touch with said Shri Zoheb Moin. The statement of G-card holder, as has been taken as basis by the adjudicating authority while revoking the suspension, is also silent about Shri Zoheb Moin to ever been the authorized person of the exporter. Exporter has also not appeared to acknowledge Shri Zoheb Moin as its authorized person. Nor any authority in favour of Shri Imran Khan has been produced by respondent CB. Mere courier receipts to fro CB and exporter address are not sufficient to prove existence of exporter at the address mentioned in IEC. In such circumstances, communication from Meerut Commissionerate dated 04.02.2019 informing that M/s Fine Overseas is not found existing at the given address not even the director of the firm could be found as none could tell about the name of the units and summons could not be served stands unrebutted. In the absence of the cogent evidence by the CB to prove the verification done at his end as required under Regulation 10(n), we have no reason to differ from the response of the Meerut Commissionerate about M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy has hold as follows: 19. Thus, any contravention of the obligations cast on the CHA even without intent would be sufficient to invite upon the CHA the punishments listed in the Regulations. 20. In Shri Kamakshi Agency the role of the CHA had been set out in the following terms:- The very purpose of granting a license to a person to act as Custom House Agent is for transacting any business relating to the entry or departure of conveyance or the import or export of goods at any customs station. For that purpose, under Regulation 9 necessary examination is conducted to test the capability of the person in the matter of preparation of various documents, determination of value procedures for assessment and payment of duty, the extent to which he is conversant with the provisions of certain enactments etc. Therefore, the grant of licence to act as a Custom House Agent has got a definite purpose and intent. On a reading of the Regulations relating to the grant of licence to act as Custom House Agent, it is seen that while Custom House Agent should be in a position to act as agent for the transaction of any business relating to the entry or departure of conveyance or the ..... 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