TaxTMI 
TaxTMI 
2019 (4) TMI 911
X X X X Extracts X X X X
X X X X Extracts X X X X
....as endorsed under Regulation 7(2) of Customs Broker Licensing Regulation (for short, CBLR, 2013). Vide the impugned order, the learned adjudicating authority has imposed penalty of Rs. 50,000/- under Regulation 22 read with Regulation 20 of CBLR, 2013 for the contravention of provisions of Regulation 11(d), 11(n) and 17(9) ibid. 2. The brief facts of the case are that the appellant during the course of their business has undertaken clearance of consignment of one importer, viz. M/s Spectrum Enterprises, Mumbai, who as per the Department imported consignment of „plastic resin stones‟ and „plastic beads‟ at Air Cargo Complex. Sahar, an Airway Bill No. 58923441946 dated 10.7.2014 vide Import General Manifest No. 622108 dated 10.7.2014. On examination only 4 packages weighing 85 Kgs. were found to contain plastic beads instead of 21 packages declared. Remaining 27 packages weighing 972 Kgs. were found to contain plastic resin stones and not plastic beads. These items were solid in form without having any hole/aperture thereon and thus, appeared not to qualify for being described as „plastic beads‟. Thus, these goods appeared to have been mis-decla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the IEC was obtained fraudulently. Shri Pradeep Thorat, in his statement, stated that he has given four consignments to Shri Musha under the said IEC of M/s Spectrum Enterprises for customs clearance but the appellant failed to verify the antecedent correctness of IEC holder, their identity and functioning as per the requirement of CBLR under Regulation 11(n). 2.2 Similarly, as per Regulation 17(9) of CBLR the "Customs Broker shall exercise such supervision as may be necessary to ensure the proper conduct of the employees in the transaction of business and shall be held responsible for all acts or omissions of his employees during the employment." In the instant case, the appellant „G‟ Card holder, Shri Musha D. Kumbhar, had taken the documents made in the name of M/s Spectrum Enterprises from Shri Pradeep Thorat. Shri Musha was also aware that Shri Pradeep Thorat was not having his own import export business. He had never seen the importer and never tried to verify the details of the importer. He was not aware of the fact that who has signed the Customs declaration in the instant case. Shri Musha D. Kumbhar was not doing Customs clearance work in his own name/ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing reliance on the following case laws: (i) Necko Freight Forwarders Ltd. Vs. CC (Gen.) - 2018 (360) ELT 879 (Del.); (ii) Innovative Cargo Services Vs. CC (Gen.) - 2017 (356) ELT 181 (Del.); (iii) Sowparnika Shipping Services Vs. CC, Chennai-VIII - 2017 (352) ELT 286 (Mad.); (iv) M/s Rajendra M Purohit Vs. CCE, Jaipur - Custom Appeal No. C/53418/2015-CU(DB) - (Vide Final Order No. 56431/2017 dated 22.5.2017); (v) Ambika Enterprises Vs. CC (Import & General), New Delhi - 2016 (343) ELT 1022 (Tri.-Del.). Regarding failure of following the provisions of 11(d) by the appellant, learned Advocate submits that the appellant has correctly filed Bill of Entry on the basis of invoice and packing list provided by the importer. There was no occasion on the appellant to believe that documents at the strength of which the imported consignment was sought to be cleared was any way false and mis-declared and, therefore, he has not failed in discharges his duties as casted upon him under Section 11(d) of the CBLR. The authorisation was also given to the appellant by the importer in their favour. For this also there is nothing on record to prove that the same was forged and fabrica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as also previously imported the goods through other Customs Broker was also known to the appellant. Under the circumstances, there was no chance of any doubt about existence of importer and Know Your Customers (KYC), norms were fully complied with as per the CBEC circular. The appellant has also verified the existence of the importer from the Service Tax Department, wherein the importer were found to be registered. 3.3 It is further submitted by the ld. Advocate that in view of above submissions made there is no condition precedent suggesting that there was a violation of Regulation 17(9) by their employee. 4. Learned Authorised Representative on behalf of the Revenue submits that in this case there was violation of various provisions of the CBLR, 2013 by the appellant and accordingly, the Commissioner has rather taken a lenient view by not revoking their Customs Broker Licence and forfeiture of Security Deposit property but resorted to less punishment of imposing penalty. Therefore, the order passed by the learned Commissioner is sustainable and required to be upheld in the appeal. 5. Against this background and submissions made by various parties and perusal of the recor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 reported in 2000 (122) E.L.T. 581 (Tri.), this Tribunal held that the mere fact of bills raised on the intermediary cannot be held against the CHA firm to prove that the CHA licence was sub-let or transferred. Therefore, in the light of the judgments cited above, the charge of violation of Regulation 12 is not established. As regards the violation of Regulation 13(a), the adjudicating authority himself has observed that the "I have no doubt to say that the CHA might have obtained the authorisation but it is surely not from the importer. Therefore, the authorisation submitted is not a valid one". This finding is based on a presumption. Obtaining an authorisation from the importer does not mean that the same should be obtained directly; so long as the concerned import documents were signed by the importer, it amounts to authorisation by the importer and, therefore, it cannot be said that there has been a violation of Regulation 13(a). As regards the last charge, i.e. the appellant did not transact the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to verify the antecedent of the importer so as to comply with the KYC norm. There are larger number of decisions which states that the appellant has Customs Broker is liable to verify the KYC of the appellant on the basis of documents supplied by them as a prudent person. The CHA is not supposed to verify the each and every aspect about the business of importer as the Inspector of Department or investigating agency. From the submission made by the ld. Advocate and fact on record, it is apparent that the appellant has taken due diligence while verifying the KYC of the appellant based on the record submitted by him. We also find that the KYC is required to be done on the basis of following guidelines prescribed by the Central Board of Excise & Customs which are as under: S. No. Form of organisation Features to be verified Documents to be obtained 1. Individual (i)Legal name and any other names used (ii)Present and Permanent address, in full, complete and correct. (i)Passport (ii)PAN card (iii)Voter‟s Identity card (iv)Driving licence (v)Bank account statement (vi)Ration card Note: Any two of the documents listed above, which provides c....