M/S.Cargo Care International vs. Commissioner Of Customs

By interim order dated 29.08.2022, this Court directed as under:-

The learned counsel for the petitioner submits that in the facts of the present case, the petitioner cannot be held responsible for violating the obligations imposed on it under the Regulations. It is submitted that all KYC documents which were obtained and submitted are not found to be forged or manipulated in any manner. It is submitted that merely because the exporter concealed some red sanders in the consignment for export, the Customs Broker license issued to the petitioner cannot be suspended. It is submitted the effect of Regulation 10(n) of the Customs Brokers Licensing Regulations, 2018 cannot be that the Customs Broker must be responsible for all actions of the exporter and if the KYC documents and such other documents as required in terms of the Regulations are available, then no action can be taken by the Customs Department against the Customs Broker. It is also submitted that suspension is a drastic measure affecting the very business of the petitioner and the livelihood of its employees and the power to suspend can only be in the circumstances contemplated by Regulation 16 of the Regulations.

The learned Standing Counsel appearing for the respondent Department refers to the facts and the provisions of the Regulations. He also places reliance on a judgment of a Division Bench of the Calcutta High Court in Welcome Air Express Pvt. Ltd. v. Commissioner of Customs (Airport & Administration) 2022(380)E.L.T.544 and to the order of the the Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Manoj Gadhiya v. Commissioner of Customs, Ahmedabad; 2021 (378) ELT 465 to drive home the point that that compliance with the requirements of Regulation 10(n) of the Customs Brokers Licensing Regulations, 2018 is mandatory and the danger of diluting the requirements. It is submitted that the role of the Customs Broker is very important in the process of import and export and any contravention of the obligation must necessarily invite action in terms of the regulations. It is also pointed that the petitioner has been earlier proceeded with

Having heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent, I am prima facie of the view that if the documents which establish the identity of the exporter, the correctness of the importer exporter code, goods and services tax identification number and functioning of the exporter at the declared address is established by documents that are available with the Customs Broker, then the fact that the exporter or importer did something in violation of the law is no ground to proceed against the Customs Broker. It is true that the Customs Broker discharges important functions and he is responsible to the extent specified in the regulations. But once that threshold is crossed, further obligations such as an obligation to prevent any further malpractice by the importer or exporter including the responsibility to ensure that the import or export is completely in accordance with customs law and procedures is not something which is the responsibility of the Customs Broker. In the light of the prima facie view I have taken, I am inclined to grant an interim order to the petitioner subject to the condition that the petitioner will engage in his business strictly in accordance with the Customs Brokers Licensing Regulations, 2018. This order shall be in force till 19.09.2022. It is made clear that this order will not prohibit the continuation / culmination of proceedings now initiated against the petitioner.

When this matter is taken up for consideration today, learned counsel appearing for the respondent Department submits that following the aforesaid interim order, license of the petitioner has been restored. It is submitted that a show cause notice dated 13.09.2022 is also issued to the petitioner and if the petitioner co- operates with the adjudication of the said show cause notice, the

Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent- Department, this writ petition is disposed of, directing that the show cause notice issued to the petitioner on 13.09.2022 shall be adjudicated in accordance with law, within a period of three months from the date of receipt of a certified copy of this judgment. The interim order dated 29.08.2022 will continue till the final orders are passed (in the adjudication) as directed above.