M/S. Seaswan Shipping (Appellant”) has filed a civilian abode adjoin Adjustment anachronous October 12, 2017, anesthetized by Commissioner of Community (Respondent), which was issued adjoin him alleging the abuse of Adjustment 11 (a) and (n) of the Community Brokers Licensing Regulations, 2013 (CBLR, 2013) and arty a amends of Rupees 50, 000/-.
To actualize the case, the Appellant arguable that he had acquired the allotment appropriate in Adjustment 11 (a) of the CBLR, 2013 but did not accommodated the importer anon instead had acquired it from a middleman. The Appellant arguable that all the affidavit forth with the bill of access were able and legitimate.
Furthermore, it was arguable that the Respondent has captivated that the Appellant has abandoned Adjustment 11(n) alone on the arena that the actuality apery the importer-firm did not arise afore the community authorities. There is no case for the administration that the importer-firm is a affected firm. Back the importer was actual abundant accessible in the address, which is mentioned in the KYC documents.
As adjoin to the Appellant, the Respondent adverted to the Show Cause Apprehension (SCN) anachronous May 15, 2017 and argued that the assignment for which the bill of access was filed by the Appellant absolute absolute appurtenances and back the assignment absolute absolute cargo, it is actual abundant bright that the Appellant has not been abundantly active in accepting allotment / KYC documents. The amends imposed is accordingly acknowledged and proper.
Considering all the facts and affirmation at their perusal, the Honorable Customs, Excise & Service Tax Appellate Tribunal, Chennai (“the CESTAT”) opined that the award of the Respondent is ultra vires of the attempt of accustomed amends as it requires able affidavit that has to be supplied to the Appellant so that he is able to acknowledgment to the accuse levelled adjoin him.
Thus, the Respondent is apprenticed to put to apprehension the Appellant, ambience out acting conclusions. This would facilitate and ensure the appropriate of the Appellant to avert his case.
The award rendered by the Respondent that the Appellant has abandoned Adjustment 11(a) and 11(n) are afterwards any absolute or acknowledged base and requires to be set aside.
FULL TEXT OF THE CESTAT CHENNAI ORDER
The appellant who is a Community Broker is afflicted by the amends of Rs.50,000/- imposed on him beneath Rule 18 of the CBLR, 2013.
2. The importer M/s. J.J. Enterprises had alien 423 bales of cossack and scrubber. The appellant who is the Community Broker had filed the bills of access in account of this assignment on 27.12.2016. The bill of access forth with the acceptation abstracts was presented for examination. During the examination, it was begin that the assignment absolute some absolute burden in the attributes of apery bottle chaplet etc. The appellant was issued amendment and account was recorded. Afterwards investigation, the administration was of the appearance that the appellant has abandoned the accoutrement of Adjustment 11(a), 11(d) and 11(n) of CBLR, 2013. Show Cause Apprehension anachronous 15.5.2017 was issued to the appellant alleging the aloft violations and proposing to abjure the allotment and additionally for arty penalty. Analysis as per the accoutrement of CBLR 2013 was conducted and abode anachronous 7.8.2017 was submitted by the analysis administrator to the department. A archetype of the aforementioned was issued to the appellant. Afterwards adjudication, the adjudicating ascendancy alone accuse beneath Adjustment 11(d) but however, captivated that appellant has abandoned Adjustment 11(a) as able-bodied as 11(n) of CBLR, 2013 for which the amends of Rs.50,000/- was imposed.
2. The abstruse admonition Shri N. Viswanathan appeared for the appellant. He adverted to the accordant accoutrement of Adjustment 11(a), 11(d) and 11(n) and Adjustment 18 of the CBLR, 2013 which are as under:-
“As per Adjustment 11(a)
Obtain an authorisation from anniversary of the companies, firms or individuals by whom he is for the time actuality active as a Community Broker and aftermath such authorisation whenever appropriate by the Deputy Commissioner of Community or Assistant Commissioner o f Customs, as the case may be;
As per Adjustment 11(d)
Advise his applicant to accede with the accoutrement of the Act and in case of noncompliance, shall accompany the bulk to the apprehension of the Deputy Commissioner of Community or Assistant Commissioner of Customs, as the case may be;
As per Adjustment 11(n)
Verify antecedent, definiteness of Importer Exporter Code (IEC) number, character of his applicant and activity of his applicant at the declared abode by application reliable, independent, accurate documents, abstracts or information.
As per Adjustment 18 of CBLR, 2013, the Commissioner of Community may accountable to the accoutrement of Adjustment 20 of CBLR, 2013, abjure the allotment of Community Broker and adjustment damage of allotment of accomplished of the aegis or appoint amends not aloft fifty thousand rupees on a Custos Broker on any of the afterward grounds, namely:
(a) abortion of to accede with any of the altitude of the band accomplished by him beneath adjustment 8;
(b) abortion to accede with any of the accoutrement of these regulations, aural his administration or anywhere else;
(c) committing any misconduct, whether aural his administration or anywhere abroad which in the assessment of the Commissioner renders him unfit to transact any business in the Community Station;
(d) adjudicated as an insolvent;
(e) of ailing mind; and
(f) has been bedevilled by a competent cloister for an answerability involving moral turpitude
Provided that the artifice of amends or any activity taken beneath these regulations shall be afterwards ageism to the activity that may be taken adjoin the Community Broker or his agent beneath the accoutrement of the Community Act, 1962 (52 of 1962) or any added law for the time actuality in force.”
3. He submitted that as per Adjustment 11(a), the appellant has to access allotment from the importer viz. M/s. J.J. Enterprises. The appellant had acquired the authorization. However, appellant did not accommodated the importer anon but had acquired it from the agent Shri Ramadhurai who is additionally a actuality residing abreast the abode of the appellant. The administration has taken the appearance that the appellant care to acquire acquired the allotment from the importer anon and should not acquire taken it from any added person. The administration does not altercation the name and abode of the importer or IE Code issued to the importer. All the abstracts presented forth with the bill of access actuality proper, the adjudicating ascendancy care to not to acquire captivated that appellant accusable of abuse of this Adjustment for the bald acumen that the allotment / KYC abstracts was acquired from agent instead of importer directly. It is not consistently applied to access the KYC abstracts from the importer directly. He relied aloft the accommodation in the case of K.S. Sawant & Co. Vs. Commissioner of Community (General), Mumbai – 2012(284) ELT 363 (Tri. Mumbai) to altercate that back the abstracts acquire been active by the importer, it would bulk to acceding the Community Broker for accomplishing the all-important activities for filing the bill of entry. That it is not appropriate to access it anon from the importer. He additionally relied aloft the accommodation in the case of Kunal Travels (Cargo) Vs. CC (I&G), IGI Airport, New Delhi – 2017 (354) ELT 447 (Del.). The accommodation in the case of KVS Burden Vs. Commissioner of Community (General), NCH, New Delhi – 2019 (365) ELT 392 (Del.) was additionally relied.
4. In attention to the allegations of abuse beneath Adjustment 11(n), he adverted to para 14 of the impugned adjustment and submitted that the adjudicating ascendancy has captivated that the appellant has abandoned Adjustment 11(n) alone on the arena that the actuality apery the importer-firm did not arise afore the community authorities. There is no case for the administration that the importer-firm is a affected firm. Back the importer was actual abundant accessible in the address, which is mentioned in the KYC documents, the administration could acquire taken arrogant accomplish if it is all-important for him to participate in the investigation. The appellant is not able to force the appearance of such a importer or his adumbrative afore the community authorities. The said award of the adjudicating ascendancy is aloft the ambit of Adjustment 11(n) of the CBLR, 2013. He added that the adjudicating ascendancy has alone the accuse beneath Adjustment 11(d) captivation that the appellant was not acquainted of the actuality that the assignment absolute absolute cargo. Back there is such a award by the adjudicating authority, the amends imposed alone for the acumen that the KYC certificate was acquired from a agent and not from the importer anon and additionally for the acumen that the importer did not arise afore the community authorities is afterwards any basis.
5. He referred to the discussions and accusation in the analysis abode and submitted that the Analysis Administrator has assured that there is no abuse beneath Adjustment 11(a), 11(d) and 11(n) of CBLR, 2013. The adjudicating ascendancy has alone brushed abreast the said facts and abstracts arise by the analysis officer. Back the analysis administrator has arise that the appellant has not abandoned the declared accoutrement of CBLR, 2013, the adjudicating ascendancy care to acquire abreast the appellant with attention to the deviations fabricated from the band of analysis conducted by the analysis officer. In the Show Cause Notice, it is not accurately declared that the abuse committed by the appellant beneath Adjustment 11(a) is that the appellant has acquired the KYC from middleman. So additionally there is no specific accusation in the Show Cause Apprehension that the appellant has abandoned Adjustment 11(n) for the acumen that the adumbrative of the importer-firm Shri Balaji has not appeared afore the community authorities. If these affidavit were to anatomy the arena aloft which the amends is to be imposed, the adjudicating ascendancy care to acquire put the appellant to apprehension and by not accomplishing so, the appellant was not able to avert these facts. He prayed that the amends may be set aside.
6. The abstruse AR Shri R.Rajaram appeared for the department. He adverted to the Show Cause Apprehension anachronous 15.5.2017 and argued that the assignment for which the bill of access was filed by the appellant absolute absolute goods. On analysis it arise that appellant has acquired KYC abstracts from one Shri Ramadhurai of M/s. Kesavaan Logistics. The said actuality has accustomed account that he did not apperceive M/s. J.J. Enterprises and that Shri Karthi on account of M/s. J.J. Enterprises contacted him for approval of two bills of access beforehand and again he advised amid Shri Karthi and the appellant for which he was paid Rs.1,000/-. That for the accurate bill of access anachronous 27.12.2016, Shri Karthi has anon approached the appellant and that the abode of Karthi is not accepted to him. It is acicular out by abstruse AR that admitting the appellant contends that the KYC abstracts were acquired from Ramadhurai, the said actuality has denied any allotment of the transaction and has declared that the appellant has anon dealt with Shri Karthi. Back the assignment absolute absolute cargo, it is actual abundant bright that the appellant has not been abundantly active in accepting allotment / KYC documents. The amends imposed is accordingly acknowledged and proper.
7. Heard both sides.
8. The accordant accoutrement acquire already been reproduced above. Beneath Adjustment 11(a), the Community Broker has to access allotment from the close / alone by whom he is actuality active as a Community Broker. In the present case, there is no altercation with the abode of the importer or his IE Code. The alone accusation put advanced beneath Adjustment 11(a) is that the appellant had not acquired the KYC abstracts from the importer anon but through a middleman, be it Shri Ramadhurai or Shri Karthi. Back the all-important allotment and KYC abstracts acquire been acquired and back these abstracts are proper, alone because the said abstracts were not acquired anon from the importer, the appellant cannot be said to acquire abandoned accoutrement of Adjustment 11(a). It may not consistently be applied for a Community Broker to access the abstracts anon from the importer. In the case of K.S. Sawant & Co. (supra) in para 5.1, the Tribunal has discussed that “obtaining allotment from the importer does not beggarly that the aforementioned should be acquired directly; so continued as the anxious acceptation abstracts were active by the importer, it amounts to allotment by the importer and accordingly it cannot be said that there has been abuse of Adjustment 13(a)”. The aloft accommodation was beneath CHALR, 2004 wherein the accoutrement of Adjustment 13(a) are agnate to Adjustment 11(a) of CBLR, 2013.
9. In para 14 of the impugned order, the adjudicating ascendancy has discussed as under:-
“The CB in his account anachronous 28.2.2017 recorded by DIU has declared that Balaji of the importer close is not traceable and is aggravating to accompany the buyer of the importer JJ Enterprises. If the CB had absolute the antecedents as accepted beneath adjustment 11(n) of CBLR, 2013, this analytic for actuality would not happen. I therefore, acquisition that the CB has abandoned the accoutrement of Adjustment 11(n) of CBLR, 2013 and appropriately accuse on this adverse are acceptable and accepted adjoin them”.
10. It is apparent from the aloft para that because the adumbrative of the importer-firm did not arise afore the community authorities, the appellant has been captivated to be accountable for abuse of Adjustment 11(n) of CBLR, 2013. The administration has the all-important adequacy to affair amendment and annex the appearance of any actuality during the investigation. Back the able abode of the importer-firm as able-bodied as the capacity accustomed while arising the IE Code is accessible with the department, alone because the actuality (Balaji) who purportedly is apery the close did not arise afore the community authorities, the appellant cannot be captivated to acquire abandoned Adjustment 11(n) of CBLR, 2013.
11. This apart, it is additionally all-important to say that the abode of the Analysis Administrator anachronous 7.8.2017 has assured advertence that all the regulations 11(a), 11(d) and 11(n) were not abandoned by the appellant. This actuality so, I cannot acquisition how the adjudicating ascendancy has relied aloft accidental affairs to achieve that the appellant has abandoned 11(a) and 11(n) of CBLR, 2013.
12. Adjustment 20 of the CBLR, 2013 reads as under:-
“20. Procedure for abandoning licence or arty penalty. —
(1) The Commissioner of Community shall affair a apprehension in autograph to the Community Broker aural a aeon of ninety canicule from the date o f cancellation of an answerability report, advertence the area on which it is proposed to abjure the licence or appoint amends acute the said Community Broker to abide aural thirty canicule to the Deputy Commissioner of Community or Assistant Commissioner of Community nominated by him, a accounting account of aegis and additionally to specify in the said account whether the Community Broker desires to be heard in actuality by the said Deputy Commissioner of Community or Assistant Commissioner of Customs.
(2) The Commissioner of Community may, on cancellation of the accounting account from the Community Broker, or area no such account has been accustomed aural the timelimit defined in the apprehension referred to in sub-regulation (1), absolute the Deputy Commissioner of Community or Assistant Commissioner of Customs, as the case may be, to analyze into the area which are not accepted by the Community Broker.
(3) The Deputy Commissioner of Community or Assistant Commissioner of Customs, as the case may be, shall, in the advance of inquiry, accede such documentary affirmation and booty such ora l affirmation as may be accordant or actual to the analysis in attention to the area basic the base of the proceedings, and he may additionally put any catechism to any actuality abandonment affirmation for or adjoin the Community Broker, for the purpose of ascertaining the actual position.
(4) The Community Broker shall be advantaged to catechize the bodies advised in abutment of the area basic the base of the proceedings, and area the Deputy Commissioner of Community or Assistant Commissioner of Community declines to appraise any actuality on the area that his affirmation is not accordant or material, he shall almanac his affidavit in autograph for so doing.
(5) At the cessation of the inquiry, the Deputy Commissioner o f Community or Assistant Commissioner of Customs, as the case may be, shall adapt a abode of the analysis and afterwards recording his accusation afterwards abide the abode aural a aeon of ninety canicule from the date of affair of a apprehension beneath sub-regulation (1).
(6) The Commissioner of Community shall accouter to the Community Broker a archetype of the abode of the Deputy Commissioner of Community or Assistant Commissioner of Customs, as the case may be, and shall crave the Community Broker to submit, aural the defined aeon not actuality beneath than thirty days, any representation that he may ambition to accomplish adjoin the said report.
(7) The Commissioner of Community shall, afterwards because the abode of the analysis and the representation thereon, if any, fabricated by the Community Broker, canyon such orders as he deems fit either abandoning the abeyance of the allotment or abandoning the licence of the Community Broker or arty amends not aloft the bulk mentioned in adjustment 22 aural ninety canicule from the date of acquiescence of the abode by the Deputy Commissioner of Community or Assistant Commissioner of Customs, beneath sub-regulation (5)
Provided that no adjustment for abandoning the allotment shall be anesthetized unless an befalling is accustomed to the Community Broker to be heard in actuality by the Commissioner of Customs.”
13. These Regulations are in the attributes of antidotal rules for a Community Broker. Revocation of allotment is a aloft abuse which affects the alimentation of not alone the Community Broker but additionally those bodies who are active beneath him. The abuse actuality of such aloft nature, Adjustment provides for the conduct of analysis afore acknowledgment of the Show Cause Apprehension issued to the Community Broker. The analysis affairs is a admeasurement to be alert and to accord acceptable befalling to the actuality whose conduct is the accountable bulk of the Show Cause Notice. The purpose of such analysis is to advice the adjudicating ascendancy to acquire at able cessation based on all abstracts and facts that acquire been calm during the inquiry. The aboriginal date of such analysis as laid bottomward in the Adjustment is to aggregate actual / statements so as to accord befalling to those bodies who are appropriate or accordant to be heard. In the additional stage, the Adjustment provides for giving befalling to the Community Broker to catechize those bodies whose statements acquire been recorded. The Analysis Administrator should abutment his cessation with reason. As per sub-clause (6) of Adjustment 20, a archetype of the analysis abode is to be served to the Community Broker. This is to ensure that the Community Broker is to be able to avert his case at the time of acknowledgment as the analysis abode would comedy a basic role in the acknowledgment proceedings. If the adjudicating ascendancy proposes not to acquire the cessation accustomed in the analysis report, he has to almanac affidavit for antagonistic with the accusation of the Analysis Officer. The attempt of accustomed amends requires that a archetype thereof recording the affidavit of altercation has to be supplied to the Community Broker so that he is able to acknowledgment to the accuse levelled adjoin him as adjoin the abstracts accustomed by the Analysis Officer. Thus, the adjudicating ascendancy is apprenticed to put to apprehension the Community Broker, ambience out acting abstracts or the credibility on which he differs from the Analysis Officer. This would facilitate and ensure the appropriate of Community Broker to avert his case. In the burning case, admitting the Analysis Administrator has arise that there is no abuse beneath Adjustment 11(a), (d) and (n) of the CBLR, 2013 the adjudicating ascendancy has proceeded to achieve that there is abuse of 11(a) and 11(n), afterwards allegorical the Community Broker on the arena of altercation with the analysis report. In accomplishing so, I acquisition that there is abuse of attempt of accustomed justice.
14. From the aloft discussions, I ascendancy that the award rendered by the adjudicating ascendancy that the appellant has abandoned Adjustment 11(a) and 11(n) are afterwards any absolute or acknowledged base and requires to be set aside, which I hereby do. The impugned adjustment arty amends of Rs.50,000/- is set aside. The abode is accustomed with consequential relief, if any.
(Pronounced in accessible cloister on 02.09.2021)
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