TMI Blog2024 (1) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... perintendent ( Authorized Representative ) for the Respondent ORDER RAJU This appeal has been filed by Purshotam Chatrabhuj Thackar against order of Commissioner suspending the Customs Broker License of the appellant under regulation 16(1) of CBLR 2018 read with regulation 10 of CBLR 2018 followed by order dated 23.08.2023 continuing the suspension order dated 24.07.2023 in terms of regulation 16(2) of CBLR 2018. The facts of the case of as follows: Date Particulars 02.11.2016 M/s.Neminath Industries having IEC No.0315079053 (hereinafter referred to as the exporter') filed Shipping Bill Nos.2014912 and 2014929 both dated 02.11.2016 through Customs Broker M/s.Maj Shipping Pvt. Ltd. for export of goods contained in factory stuffed container. 08.11.2016 The officer posted for clearance of Factory Stuffing Containers at MSWC CFS suspected the genuineness of the factory stuffing permission produced by M/s. Neminath Industries for the above-mentioned two Shipping Bills. The said Factory Stuffing Permission (FSP) produced by the exporter was sent for verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipping Bills pertaining to M/s. Neminath Industries (IEC No.0315079053), 259 Shipping Bills pertaining to M/s. Adinath Industries (IEC No.0315064196) 230 Shipping Bills pertaining to M/s. Arihant Industries (IEC No.0311050638) were filed using fake Factory Stuffing Permissions. Or further analysis of the data, remaining 571 Shipping Bills pertaining to M/s. Neminath Industries (IEC No.0315059281) M/s. Adinath Industries (IEC No.0314078461), it was observed that data pertaining to 40 Shipping Bills of M/s. Neminath Industries (IEC No.0315059281) and 48 Shipping Bills of M/s. Adinath Industries (IEC No.0314078461) was not found with the Central Excise department. Out of the remaining Shipping Bills, 79 Shipping Bills pertaining to M/s. Neminath Industries (IEC) No.0315059281) and 20 Shipping Bills pertaining to M/s. Aadinath Industries (IEC No.0314078461) were filed using FSPs. 09.06.2021 The statement of Shri Dilip Purshotam Thackar, Partner of the Appellant was recorded under Section 108 of the Customs Act, 1962. 08.04.2022 Another summons was issued to the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custom Broker License was initiated in the year 2023. He pointed out that regulation 16(1) of CBLR 2018 prescribes that only where immediate action is necessary, the license should be suspended. He relied on the decision of Tribunal in the case of National Shipping Agency 2008 (226) ELT 46(BOM). 2. The power of suspension is pursuant to the powers conferred under Regulation 20(2) of the CHALR, 2004. As we have noted in the earlier judgments, this is an emergent power to be used in those cases where it is required that the CHA licence be immediately suspended. The very fact that alleged violation is of the year 2005, as the import had taken place in September, 2005 and order of suspension was issued on 30-10-2006 itself would indicate that that there is no emergency which required that the licence be suspended. The tribunal has noted that it is always open to the appellants herein to take steps even after the order of the tribunal sated 11-5-2007. It appears that no show cause notice has been issued to the respondents herein, till date. 3. Considering the above facts, in our opinion, the question of law would not arise and consequently appeal dismissed. We make it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the client and the address through the KYC documents. He argued that the regulation 11(n) of CBLR, 2018 does not contemplate that the custom broker should physically visit the premises of importer, exporter. He relied on the following decisions: Anax Air Services Final Order No. 50002/2022 dated 01.01.2022 S. Prakash Kushwaha 2023 (384) ELT 89 (Tri. Del.) Perfect Cargo Logistics 2021 (376) ELT 649 (Tri-Del.) 8. Learned counsel further argued that no evidence has been produced that the broker had any knowledge about the fake factory stuffing permission. He argued that the exporter had provided the KYC form, certificate from shops and Establishment Act, Udhyod Adhaar, PAN card, IEC Certificate etc. In these circumstances, no further verification was necessary on the part of the appellant in respect of the alleged exporter. 9. He argued that in absence of any evidence of appellant s involvement in the alleged fraud, no action can be initiated against the appellant. He relied on the following decisions: Sai Shipping Services 2009 (239) ELT 104 Ashok Jaiswar 2006 (200) ELT 122 10. Learned Authorized Representative relies on the impugned order. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the power is specified to be exercised in specified circumstances, that is, the appropriate cases where immediate action is necessary, it indicates that suspension is not visualized for application in a manner routine or mechanical or in every case. This aspect is to be kept in view by the Commissioner of Customs in the course of considering a proposal to suspend the licence of a customs broker. Before doing so, the Commissioner should also take the care also of recording his/her reasons as to why it is considered an appropriate case where immediate action of suspension is necessary. It is seen that the Commissioner in his order has observed that the appellant has failed to verify the antecedents of the exporters whereas there is a clear assertion on the part of the exporter that they had conducted the KYC on the basis of documents submitted by the exporter. There is no requirement under CBLR for the custom broker to physically verify the address. In these circumstances, we do not find any merit in the observations of the Commissioner on the basis of which the suspension was ordered to be continued. The impugned order is therefore set aside and appeal is allowed. ( Pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
