TaxTMI 
TaxTMI 
2023 (2) TMI 75
X X X X Extracts X X X X
X X X X Extracts X X X X
....d misdeclaration of goods by the exporter (M/s Balaji International) and attempted to facilitate export of goods otherwise restricted at the material time. 3. The appellant is a holder of CHA License No. AHPPJ4199PCH001 and had filed a Shipping Bill (being Shipping Bill no. 2867653 dated 28.05.2022) for export of consignment of 'Glucose Test Strips' classifying the same under CTH 90279090 of the Customs Tariff Act, 1975. According to the respondent, the said goods fell under classification of ITC HS code 38.22 and at the material time, the export of such goods was restricted by virtue of Notification No.59/2015-20 dated 04.04.2020. 4. A show cause notice dated 22.12.2020 was issued to the appellant by the Commissioner (Airport & General) alleging contravention of the provisions of Regulation 10 of the Customs Brokers Licensing Regulations, 2018 (hereafter 'the CBLR, 2018') and proposing revocation of the appellant's license and forfeiture of the security deposit under Regulation 14 of the CBLR, 2018. 5. Thereafter, an Inquiry Officer (hereafter 'IO') was appointed to inquire into the allegations. He submitted his report dated 22.03.2021. The IO found that the appellant had viola....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... earlier by the Hon'ble that 'Glucose Testing Strips' falls under CTH 90, Whether, Hon'ble CESTAT is right and justified in sustaining the order of revocation of CB License without deciding the core issue that 'Glucose Testing Strips' is restricted goods covered by notification no. 59/2015 -20 dated 04.04.2020." 11. The learned counsel appearing for the appellant fairly states that the question no.(ii), as noted above, does not arise for consideration as there is no dispute regarding classification of goods. He further submits that the question whether the learned Tribunal was justified in sustaining an order of revoking the CB license, forfeiting security and imposing penalty would survive as mens rea or any mala fide intent could not be imputed to the appellant. He submitted that at the material time, there was some confusion as to whether the goods in question would fall under classification CTH 90279090 or Chapter 38 of the Customs Tariff Act, 1975. Though the goods were correctly described, the same were classified under CTH90279090. 12. The learned counsel for the appellant also referred to certain communications exchanged between the exporter and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt to refer to the notification dated 04.04.2022, which has restricted the export of diagnostic kits. The relevant extract describing the goods restricted under the said notification reads as under:- "Notification No, 59/2015-2020 New Delhi, Dated: 04thApril 2020 Subject: - Amendment in Export Policy of Diagnostic Kits- reg. S.O. (E) In exercise of powers conferred by Section 3 of the Foreign Trade (Development & Regulation) Act, 1992 (No. 22 of 1992), as amended, read with Para 1.02 and 2.01 of the Foreign Trade Policy, 2015-20, the Central Government hereby makes the following amendments in the schedule 2 of the ITCHS Export Policy related to export of Diagnostic Kits, with immediate effect: Serial Number ITCHS Codes Description Present Policy Revised Policy 207 G 3822 Diagnostic Kits [Diagnostic or laboratory reagents on a backing, preparation Diagnostic or laboratory reagents whether or not on a backing, other than those of heading 3002 or 3006; certified reference materials] Free Restricted 2. The provisions under Para 1.05(b) of Foreign Trade Policy (FTP) 2015- 20 regarding transitional arrangement will not be applicable for this notification." 17. It is cle....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... It is seen from the above that although the said order does not, in any manner, restrict the Commissioner from concluding the proceedings regarding revocation of license but it does indicate that the Commissioner at the material time had taken a view keeping in mind the proportionality of the punitive measures imposed on the appellant. 22. It is also material to state that the consignment of 'Glucose Test Strips' was held up at the material time on the ground that the items were restricted. In this regard the exporter and the Department had exchanged correspondence. It is not disputed that the consignment was finally cleared. Admittedly, the goods in question were correctly described as 'Glucose Test Strips' in the Shipping Bills and these goods were exported after the initial hold up. It is, thus, not difficult to accept that at the material time, there may have been some confusion as to the classification of the goods as has been contended by the appellant. 23. The allegation against the appellant is that he had failed to comply with his obligations as stipulated in Regulation 10(e) of CBLR 2018. The said regulation is set out below: "10. Obligations of Customs Broker.-A Cu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... at the material time. In his statement, he had also candidly admitted that the shipping bill was filed during the period of lock down and that there was a mistake. He had also stated that he was not aware that the goods in question, namely, glucose tested strips contained reagents. He had also stated that they always took due care before filing shipping bill, but due to shortage of staff during the lock down period, a mistake had occurred. 27. In view of the aforesaid admission, it is apparent that the appellant had been remiss, however, the appellant's candid admission must also be read along with his statement that he was not aware that the goods in question contained reagents. The question whether the revocation of license is justified in the facts of the case must be considered in the aforesaid facts. 28. Section 14 of the CBLR, 2018 relates to revocation of license and imposition of penalty. The said section is reproduced below: - "14. Revocation of licence or imposition of penalty - The Principal Commissioner or Commissioner of Customs, may subject to the provisions of regulation 17, revoke the license of a Customs Broker and order for forfeiture of part or whole of secu....