Custom, Excise & Service Tax Tribunal
B N Thakkar &Amp Co vs Kandla on 4 June, 2020
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST ZONAL BENCH : AHMEDABAD
REGIONAL BENCH - COURT NO. 3
CUSTOMS Appeal No. 12628 of 2019
[Arising out of Order-in-Original/Appeal No OIA-KND-CUSTM-000-COM-11-2019-20 dated
29.10.2019 passed by Commissioner of Customs, Kandla]
B N Thakkar & Company .... Appellant
Plot No. 142, Sector 1/A, First Floor, Girish Complex,
Gandhidham, Kutch, Gujarat
VERSUS
Commissioner of Customs, Kandla .... Respondent
Custom House, Near Balaji Temple,
Kandla, Gujarat
APPEARANCE :
Shri Chiranjeev Tandon, Advocate for the Appellant
Shri Vinod Lukose, Superintendent (AR) for the Respondent
CORAM: HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL)
HON'BLE MR. RAJU, MEMBER (TECHNICAL)
FINAL ORDER NO. A/11103 / 2020
DATE OF HEARING : 11.02.2020
DATE OF DECISION : 04.06.2020
RAJU :
This appeal has been filed by M/s. BN Thakkar & Company against
revocation of Customs Broker License for future on security deposit and
imposition of penalty under Customs Broker Licensing Regulations, 2018
(CBLR).
2. Learned Counsel for the appellant narrated the facts as under:-
Date Event
February, 2017 The Appellant through Mr. Manoj Kannar --
proprietor of M/s. Samar Shipping received work
for export of garments on behalf of five exporters
from Mundra Port to Jebel Ali Port, Dubai. The
Appellant received following documents from all
five exporters before filing of Shipping Bills on
their behalf
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1.KYC
2. Certificate of Importer Exporter Code
3. Registration Certificate of Establishment under
the Maharashtra Shops and Establishment Act,
1948
4. Authority Letter to act as Customs Broker and
declaration under the Customs Act
5. Bank verified account details of exporter
6. Photo ID card of authorized person of exporter
firm
March 1-2, 2017 The Appellant filed 6 Shipping Bills on behalf of
five exporters on ICEGATE portal
March 10, 2017 The Preventive Officer (SIIB), Mundra conducted
examination and seized cargo on ground that it is
overvalued and liable for confiscation
March 21, 2017 The Customs Department, Mundra conducted
market enquiries for valuation of seized cargo and
in terms of market enquiry report by
Superintendent, SIIB, Customs House, Mundra it
was observed that cargo was overvalued.
April 27-28, 2017 Statement of Mr. Sagar Thakkar, authorized
person of the Appellant and Mr. Manoj Kannar
proprietor of forwarder -- Samar Shipping was
recorded by the Superintendent, SIIB, Customs
House, Mundra.
September 7, 2017 Show Cause Notice was issued to the appellant by
the Additional Commissioner of Customs, Mundra
thereby proposing to impose penalty under
Section 114 and 114AA of the Customs Act.
February 26, 2019 The Additional Commissioner, Mundra vide 010
imposed penalty of Rs. 20,00,000/- and Rs.
5,00,000/- under Section 114 and 114AA of the
Customs Act.
April 11, 2019 Principal Commissioner of Customs, Kandla vide
010 suspended the customs broker license of the
Appellant with immediate effect.
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April 22, 2019 During post decisional hearing the Appellant filed
written submissions thereby denying all
allegations and observations made in the 010
dated April 11, 2019.
April 30, 2019 The Principal Commissioner of Customs, Kandla
vide 010 confirmed suspension of customs broker
license of the Appellant.
The Appellant filed Appeal before the CESTAT,
Ahmedabad against 010 dated April 30, 2019 on
ground that suspension was not immediate in
terms of provisions of the CBLR, 2018 and other
grounds mentioned therein.
May 21, 2019 Show cause notice was issued by the Principal
Commissioner of Customs, Kandla thereby
alleging non-compliance/violation of Regulation
10(a), 10(d), 10(m) and 10(n) of the CBLR, 2018
and proposing to revoke customs broker license
along with forfeiture of security and imposition of
penalty under CBLR, 2018.
August 5, 2019 The CESTAT Ahmedabad vide Order held that
suspension of customs broker license has to be
done immediately after detection of the case by
concerned authority. The order of suspension
dated April 11, 2019 was passed after period of
two years, accordingly, 010 dated April 11, 2019
was quashed and set aside.
August 16, 2019 The Inquiry Officer submitted Inquiry Report to
the Principal Commissioner thereby confirming all
allegations made in the show cause notice dated
May 21, 2019.
September 23, 2019 Principal Commissioner of Customs, Kandla vide
Order restored customs broker license of the
Appellant in compliance to the Order dated
August 5, 2019 by the CESTAT, Ahmedabad.
October 10, 2019 The Appellant appeared for personal hearing
before the Principal Commissioner of Customs,
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CUSTOMS Appeal No. 12628 of 2019
Kandla and filed Reply and written objections to
Inquiry Report along with judicial
pronouncements relied upon by the Appellant
October 29, 2019 The Principal Commissioner of Customs vide OIO
confirmed all allegations made in the show cause
notice and ordered as under:
1. Revoked customs broker license under
Regulation 14 r/w Regulation 17 of CBLR, 2018
2. Forfeited security deposit under Regulation 14
of the CBLR, 2018
3. Imposed penalty of Rs. 50,000/- under
Regulation 18 of the CBLR, 2018
3. Learned Counsel argued that Regulation 10(a) of CBLR, 2018 has
been invoked alleging that appellant have failed to obtain authorisation from
the exporters. The said regulation reads as under:-
―10. Obligation of Customs Broker. - A Customs Broker shall -
(a) Obtain an authorisation from each of the companies, firms or
individuals by whom he is for the time being employed as a Customs
Broker and produce such authorisation whenever required by the
Deputy Commissioner of Customs or Assistant Commissioner of
Customs, as the case may be;‖
(b)
Learned Counsel argued that they had availed proper authorisation from all
the five exporters to act as their customs broker and only after obtaining
the said authorisation they filed shipping bills for export cargo on their
behalf. He submits that following document were obtained:-
(a) Know Your Customer (KYC)
(b) Certificate of Importer Exporter Code.
(c) Registration Certificate of Establishment under the Maharashtra
Shops and Establishment Act, 1948.
(d) Authority letter to act as Customs Broker and declaration under
the Customs Act.
(e) Bank verified account details of exporter
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(f) Photo identity card of authorized person of exporter firm/
company.
It was argued by the learned Counsel that the fact of having received
authorisation by the appellant has not been disputed or pointed out by the
Adjudicating Authority. He further argued that Shri Sagar Thakkar,
authorised person of the appellant in his statement dated 27.04.2017,
recorded under Section 108 of the Customs Act, had specifically stated that
they had obtained authorisation from the exporters. He argued that
Adjudicating Authority has given reasoning that appellant failed to provide
details of courier/ post through which it received authority letters and all
authorizations were of around same date. The Adjudicating Authority relied
on the fact that exporters were found to be non-existent and Shri Manoj
Kannar is untraceable.
4. The next issue raised, relates to Regulation 10(d) of the CBLR. The
said regulation requires as follows.
―(d) advise his client to comply with the provisions of the Act, other
allied Acts and the rules and regulations thereof, and in case of non-
compliance, shall bring the matter to the notice of the Deputy
Commissioner of Customs or Assistant Commissioner of Customs, as
the case may be;‖
Learned Counsel pointed out that it has been alleged that the appellant has
failed to advise his clients to comply with the provisions of Customs Act. In
case of non-compliance, the customs broker has to bring it to the
knowledge of the Customs Department but the knowledge of such non-
compliance on the part of the customs broker is pre-requisite. It Customs
Broker himself is unaware of such facts how can he bring it to notice.
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CUSTOMS Appeal No. 12628 of 2019
Learned Counsel pointed out that it has been alleged that appellant
received two trucks of ‗mixed chindi' at Mundra CFS and instead of
informing the same to Customs department, the appellant were awaiting
instructions of Manoj Kannar and exporter.
Learned Counsel pointed out that the appellant were unaware of
overvaluation of cargo. He argued that as soon as they became aware
about the issue and the cargo was carted in the CFS, they informed
immediately to the Customs department and to the exporters that they will
not clear the cargo in question. He argued that in the absence of any prior
knowledge of over valuation, there is no question of bringing it in the notice
of the Customs department.
Learned Counsel argued that impugned order does not produce any
evidence to substantiate the claim that appellant were aware of the over
invoicing. He argued that Regulation 10(d) of CBLR places onus on the
customs broker but to discharge such onus, the customs broker should have
knowledge of such non-compliance. Learned Counsel argued that in the
instant case, they had no knowledge of non-compliance and therefore, there
was no question of informing to the Customs department.
Learned Counsel further argued that impugned order relies on the fact
that appellant in its written submission has confirmed to the fact that
appellant received manufacturer invoice describing goods as mixed chindi
and awaiting instructions from Manoj Kannar and exporters instead of
informing to the department. It was also argued that the statement on the
basis of which the allegation has been confirmed (referred in Para 7.2 of the
Notice), has not been provided to them. Learned Counsel argued the
allegation made in Para 7.2 on the basis of statement which has not been
supplied. The statement of Shri Sagar Thakkar was recorded on 27.04.2017
wherein he stated as follows:-
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―Q. 12. Did you have pr-knowledge about overvaluation of goods?
Ans : No. As and when cargo was carted in the CFS we have
immediately informed to the exporter that we will not clear the cargo
further and informed the customs therefore no examination of cargo
was done by the customs.‖
Learned Counsel argued that enquiry report as well as adjudication order
does not counter the statement of Shri Sagar Thakkar. Learned Counsel
asserted that appellant became aware of the cargo only when it received at
CFS and the same was immediately informed. He argued that in these
circumstances, Regulation 10(d) of CBLR cannot be invoked. Learned
Counsel further argued that in Para 20.2 of the impugned order, the
Adjudicating Authority stated that on receipt of cargo, the appellant kept it
on hold for further clarification from Shri Manoj Kannar or their exporters
instead of informing the facts to the Customs authorities. It is claimed by
the appellant that they had informed the customs authorities but had not
substantiated it with any documentary proof. On the basis of this, it was
held that the appellant had pre-knowledge of the cargo.
5. Learned Counsel pointed out that Regulation 10(m) of CBLR has been
invoked. Regulation 10(m) reads as follows:-
―(m) discharge his duties as a Customs Broker with utmost speed
and efficiency and without any delay;‖
The impugned order holds that the appellant failed to inform
overvaluation of the export cargo and have not endorsed himself under
Form C with Customs authorities in compliance to Public Notice No. 1/2014
dated 22.12.2014 before acting as customs broker for clearance of cargo at
Mundra port.
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Learned Counsel argued that the question of informing to Customs
authorities would arise only when the appellant had pre-knowledge. He
argued that since the appellant had no pre-knowledge about the goods, the
question of informing the customs authorities would not arise consequently,
Reguation 10(m) of CBLR cannot be invoked. He relies on the same
argument in his defense as for Regulation 10(d) of CBLR, 2018 and submits
that Regulation 10(d) can only be invoked if it is established that he
appellant had pre-knowledge about the offended goods.
6. Learned Counsel pointed out that Regulation 10(n) of CBLR, 2018 has
been invoked. Regulation 10(n) reads as under:-
―(n) verify correctness of Importer Exporter Code (IEC) 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.‖
Learned counsel pointed out that notice alleges that appellant has not
verified the antecedents, identity of exporters and functioning of his clients
at declared address by using reliable, independent and authentic
documents, data or information particularly when the exporters had not
approached the customs broker directly for export work. The impugned
order alleges that Shri Sagar Thakkar received documents from Shri Manoj
Kannar and was not in direct touch with exporters.
Learned Counsel pointed out that appellant received the following
documents from all the five exporters:-
(i) Know Your Customer (KYC)
(ii) Certificate of Importer Exporter Code.
(iii) Registration Certificate of Establishment under the Maharashtra
Shops and Establishment Act, 1948.
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(iv) Authority letter to act as Customs Broker and declaration under
the Customs Act.
(v) Bank verified account details of exporter
(vi) Photo identity card of authorized person of exporter firm/
company.
Learned Counsel pointed out that documents such as registration certificate
under the Maharashtra Shops and Establishment Act, 1948 and bank verified
account details of exporter provides for postal address of all five exporters.
He submits that registration certificate of establishment issued by an
inspector appointed under the Maharashtra Shops and Establishment Act,
1948 wherein details of name, nature of business, postal address of such
establishment is mentioned. The banks of all the five exporters have
verified the account details of exporters which includes the postal address.
Therefore, apart from online verification of IEC of exporters from DGFT
website, the appellant have also relied on the said registration certificate
issued by Maharashtra State Government. He argued that in view of above,
there is fulfillment of requirement as per Regulation 10(n) of CBLR. Learned
Counsel argued that Regulation 10(n) does not obligate the customs broker
to verify the correctness of the address of the client by visiting the
registered premises of establishment and verify about its existence. Learned
counsel pointed out that appellant relies upon the independent and authentic
documents such as registration certificate issued by statutory authority of
the Maharashtra State Government under the Maharashtra Shops and
Establishment Act, 1948 and letters issued by the respective banks along
with stamp and signature of authorised office of said banks. Learned
Counsel relied on the decision of the Tribunal in the case of Parvath Shipping
Agency vs. CC - 2017 (357) ELT 296 (Tri. Mumbai). Learned Counsel
argued that merely the documents not received directly from the exporters
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does not mean that higher test for verification is necessary. He also relied
on the Circular No. 9/2010 dated 08.04.2010 issued by CBEC. Learned
Counsel also relied on the decision of Tribunal in the case of APS Freight &
Travels Pvt. Limited vs. CC (General), New Delhi - 2016 (344) ELT 602 (Tri.
Del.).
7. The next issue raised by the learned Counsel relates to invocation of
Regulation 17 of CBLR, 2018 which describes procedure and limitation for
revocation of customs broker license, forfeiting security deposit and
imposing penalties and also describes the quantum of penalties can be
imposed.
8. Learned Counsel pointed out that notice has been issued beyond the
period of limitation prescribed under Regulation 17 of CBLR, 2018. Learned
Counsel pointed that the shipping bills on behalf of all the exporters was filed
by the appellant on 01 and 02 March 2017. The examination of export cargo
was conducted by PO, SSIB Customs House Mundra on 10 March 2017. The
Customs authority Mundra conducted market enquiries for valuation of
seized cargo on 21 March 2017. The statements of Shri Sagar Thakkar and
Shri Manoj Kannar was recorded on 27 April 2017 and 28 April 2017
respectively. The show cause notice dated 09 September 2017 was issued
to the appellant proposing to impose penalty under Section 114 and 114AA
of the Customs Act. The revocation of customs broker license of the
appellant has been proposed vide notice dated 21 May 2019. Learned
Counsel argued that department was aware about the said export
transaction since March 2017 however, proceedings under the Notice for
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violation of provisions of the CBLR was issued on 21 May 2019, which is
beyond the limitation.
Learned Counsel pointed out that proceedings for invocation of CBLR had to
be invoked starting from 90 days from the date of receipt of offence report.
Learned Counsel relied on the decision in the case of Harjeet Singh Johar vs.
CC - 2018 (361) RLT 731 (Del.) wherein the Hon'ble Delhi High Court
observed as follows:-
8. The core issue which arises in the present writ petition is regarding the term and
expression "offence report" as used in Regulation 20(1) of 2013 Regulations. As per the
petitioner, "offence report" would be the first information received by the authority
regarding irregularity and misconduct. This is the starting point for issue of show cause
notice. Reliance is placed on two judgments of Single Judges of the Madras High Court
in M/s. A. M. Ahamed & Co. v. The Commissioner of Customs (Imports), 2014 (309)
E.L.T. 433 (Mad.) and Patriot Freight Logistics System v. The Commissioner of Custom,
Chennai, 2017 (350) E.L.T. 59 (Mad.) The petitioner has also relied upon the assertions
made by the respondents in the counter-affidavit filed in W.P. (C) No. 3265/2017.
9. ...........
10. Decision in M/s. A. M. Ahamed (supra), relates to Regulation 20 of the Customs
House Agents Licensing Regulations, 2004 ('2004 Regulations', for short) which were
applicable prior to enactment and enforcement of 2013 Regulations. The expression
'offence report' was also used in the 2004 Regulations. Interpreting the said
expression, it was observed in M/s. A. M. Ahamed (supra) as under :-
"17. Unfortunately, the Regulations do not define what an offence report is
and the Regulations do not even state as to how an offence report is to be sent.
The Regulations do not even use the expression "offence report" anywhere else
other than Regulation 22(1). Even the grounds on which a licence can be revoked
or suspended, mentioned in Regulation 20(1), do not include the definition of
the expression offence or offence report. There are only three grounds on which
a licence can be suspended or revoked under sub-regulation (1) of Regulation 20.
Regulation 20(1) reads as follows :-
20. Suspension or revocation of licence. - (1) The Commissioner of Customs
may, subject to the provisions of regulation 22, revoke the licence of a Customs
House Agent and order for forfeiture of part or whole of security, or only order
forfeiture of part or whole of security, on any of the following grounds, namely :-
(a) failure of the Customs House Agent to comply with any of the conditions of
the bond executed by him under regulation 10;
(b) failure of the Customs House Agent to comply with any of the provisions of
these regulations, within the jurisdiction of the said Commissioner of Customs or
anywhere else;
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CUSTOMS Appeal No. 12628 of 2019
(c) any misconduct on his part, whether within the jurisdiction of the said
Commissioner of Customs or anywhere else which in the opinion of the
Commissioner renders him unfit to transact any business in the Customs Station.
18. The above regulation has only 3 ingredients namely (i) failure to comply
with the bond conditions; (ii) failure to comply with the regulations; and (iii) a
misconduct, for any of which, the license can be revoked. Since the above
regulation does not use the expression "offence report", we have to presume
that a report indicating the availability of any one of the above 3 ingredients
should be construed as an offence report. Consequently, the date of knowledge
gained by the Commissioner, by means of any communication, be it show cause
notice or order-in-original, has to be construed as the date of receipt of the
offence report. Otherwise, a report about anyone of the above 3 ingredients can
be sent at any time, even after five years or ten years.
19. The Regulations not only fail to prescribe what an offence report is and
how it is to be sent, but they do not also prescribe the person competent to send
it. In such circumstances, the interpretation sought to be given by the petitioner
is more acceptable.
20. The time limit prescribed in Regulation 22(1) has to be understood in the
context of the strict time schedule prescribed in various portions of the
Regulations. Regulation 20(2), for instance, entitles the Commissioner, to
suspend the licence of an agent, in appropriate cases where immediate action is
necessary. Regulation 22(3) prescribes a time limit of 15 days. Regulation 22(1)
prescribes a time limit within which action is to be initiated. It also prescribes the
time limit under Regulation 22(5). Therefore, considering the fact that the whole
proceedings are to be commenced within a time limit and also concluded within
a time frame, I am of the view that the show cause notice issued to the
petitioner on 8-5-2010 with a copy marked to the first respondent should be
taken as the date of receipt of the offence report. Consequently, the period of 90
days should commence only from that date. If so calculated, the impugned
proceedings have obviously been initiated beyond the period of 90 days."
11 to 13 ...........
14. Learned counsel for the petitioner has pointed out that the 2013 Regulations are
under amendment. In the draft Regulations, the term "offence report" has been
defined as :-
"Explanation : Offence report for the purposes of this regulation means a
summary of investigation and prima facie framing of charges into the allegation
of acts of commission or omission of the Customs Broker or a F card holder or a
G card holder as the case may be under these regulations which would render
him unfit to transact business under these regulations".
The aforesaid definition in the draft regulation supports the view taken by the Madras
High Court.
15. In view of the aforesaid position, we record that the suspension order dated 31-3-
2017 was based upon the offence report, and therefore the show cause notice under
Regulation 20, dated 14-7-2017, would be clearly barred by the limitation as it was
issued more than 90 days after the offence report was submitted.
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CUSTOMS Appeal No. 12628 of 2019
Learned Counsel argued that in view of the above, the offence report is
basically preliminary and the prima-facie allegation against the appellant and
the department was in knowledge about export transaction since March
2017 and the Adjudicating Authority cannot revoke customs broker license,
forfeit security and impose penalty by initiating proceedings after limitation
period of 90 days as prescribed under the provisions of CBLR 2018. He also
argued that since there was no violation by the appellant, no penalty under
Regulation 18 of the CBLR can be imposed.
9. Learned Authorised Representative relies on the impugned order. He
pointed out that appellant was never in touch with the real exporters either
personally or through phone. Learned Authorised Representative relies on
the decision of the Tribunal in the case of SK Logistics vs. CC (General), New
Delhi - 2016 (331) ELT 486 (Tri. Del.). Learned Authorised Representative
further pointed out that authorisation was not produced before the
Additional Commissioner but was produced during adjudication under the
Customs Act and when the proceedings under CBLR, 2018 started. Learned
Authorised Representative further pointed out that Principal Commissioner,
Kandla was not aware what was happening at Customs Mundra. The
appellant has not submitted Form ‗C' which was necessary.
10. We have gone through the rival submissions. As regards the issue
relates to failure to obtain authorisation from the exporters, the impugned
order relies on the fact that there is no post/ courier received or evidence of
receipt of such authorisation. The impugned order also relies on the fact
that date of all authorizations is nearly the same. The impugned order also
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CUSTOMS Appeal No. 12628 of 2019
relied on the fact that exporters were not found and Shri Manoj Kannar is
also not traceable. Relying on the aforesaid argument, the impugned order
held that appellant had not obtained the authorizations.
We find that above assertion cannot be sustained. The appellant had
produced authorisation during enquiry and Shri Sagar Thakkar, authorised
person of the appellant in his reply during the statement stated that they
had obtained authorisation. While the facts mentioned in the impugned
order may be sufficient to raise suspicion about receipt or genuineness of
the authorisation but it is not sufficient to hold that no authorization was
received. In view of above, we are unable to hold the charge made under
Regulation 10(a) of the CBLR.
10.1 As regards the allegation made under Regulation 10(d) of CBLR,
2018, we find that Adjudicating Authority has not countered the arguments
given by the appellant. There is no evidence cited by the Adjudicating
Authority to establish that the appellant had any pre-knowledge of the
nature of cargo. The statement on which the Adjudicating Authority has
relied on, has not been provided to the appellant. In view of the fact that
statement has not been provided, the impugned order cannot be upheld as
the charge has been confirmed on the basis of said statement.
In view of above, the allegation made under Regulation 10(d) of
CBLR, 2018 are set-aside and the issue is remanded to the Adjudicating
Authority for fresh decision, after providing the copy of the said statement
to the appellant.
10.2 We find that the charge of pre-knowledge has been confirmed only on
the strength of statement of the appellant recorded, referred to in Para 7.2
of the notice. There is no material evidence placed on record to
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CUSTOMS Appeal No. 12628 of 2019
substantiate the charge. Therefore, the impugned order is set-aside and
the issue is remanded for fresh adjudication.
10.3 We have gone through the submissions made regarding violation of
Regulation 10(n) of the CBLR. It is not in dispute that appellant has
obtained following documents:-
(i) Know Your Customer (KYC)
(ii) Certificate of Importer Exporter Code.
(iii) Registration Certificate of Establishment under the Maharashtra
Shops and Establishment Act, 1948.
(iv) Authority letter to act as Customs Broker and declaration under
the Customs Act.
(v) Bank verified account details of exporter
(vi) Photo identity card of authorized person of exporter firm/
company.
At least two of these documents issued by statutory authority and other by
the bank contain address of all the exporters. CBEC Circular 9/2010 also
specifies that KYC is to be done on the basis of documents and not by
physical visit of the client's premises. The impugned order holds that
customs broker never tried to contact the exporters. We do not find merit in
the argument that there is no such requirement under Regulation 10(n) of
CBLR 2018 which requires customs broker to directly contact and in touch
with the exporters. Accordingly, we are unable to uphold the invocation of
Regulation 10(n) and the same are dropped.
10.4 The next issue relates to limitation prescribed under Regulation 17 of
CBLR, 2018, which reads as under :-
"17. Procedure for revoking license or imposing penalty.--
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CUSTOMS Appeal No. 12628 of 2019
(1) The Principal Commissioner or Commissioner of Customs shall issue a notice in
writing to the Customs Broker within a period of ninety days from the date of receipt of
an offence report, stating the grounds on which it is proposed to revoke the license or
impose penalty requiring the said Customs Broker to submit within thirty days to the
Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by
him, a written statement of defense and also to specify in the said statement whether
the Customs Broker desires to be heard in person by the said Deputy Commissioner of
Customs or Assistant Commissioner of Customs.
...............
Explanation.--Offence report for the purposes of this regulation means a summary of investigation and prima facie framing of charges into the allegation of acts of commission or omission of the Customs Broker or a F card holder or a G card holder, as the case may be, under these regulations thereunder which would render him unfit to transact business under these regulations."
It is seen that in the instant case, the offence was committed at Mundra Port and the officer Incharge for starting procedure under CBLR was Principal Commissioner of Customs, Kandla. In the instant case, the impugned order clearly states that offence report along with order-in-original No. MCH/ADC/PK/114/2018-19 dated 26.02.2019 was received on 26.03.2019 from the Additional Commissioner (CBS), Customs House Mundra vide letter F. No. S/07-46/Misc-CB/CHM/2018-19 dated 15.03.2019, outlining the role of the Customs Broker in the case of export of cheap quality goods. The proceedings in the instant case were initiated on 21.05.2019. The entire defense of the appellant is that the offense was committed in 2017 and the show cause notice was issued much prior to the date of initiation of proceedings under CBLR. A perusal of Regulation 17 clearly shows that the period of limitation starts when the Principal Commissioner of Customs or Commissioner of Customs receives the offense report. In the instant case, the Principal Commissioner of Customs, Kandla initiated the proceedings and report received by him on 26.03.2019. This fact has not been challenged by the appellant. In view of above, we find there is no delay in initiation of proceedings. The case law relied upon by the appellant are on the different 17 CUSTOMS Appeal No. 12628 of 2019 facts and therefore, not applicable to the instant case. Therefore, we do not find any merit in this argument of the appellant.
11. In view of above, the impugned order is set-aside and the matter is remanded to re-determine in the above terms.
(Pronounced in the open court on 04.06.2020) (Ramesh Nair) Member (Judicial) (Raju) Member (Technical) KL