TMI Blog2014 (5) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... examination and clearance of the goods - Evidence given by Shri Sagar Rakshe and Amit Pattani, during the Inquiry has not been taken into consideration only because the said evidences given by the witnesses of the department is against the charges framed by the department. Relying upon M.V. Bijlani v. Union of India and Ors [2006 (4) TMI 455 - SUPREME COURT] -Statement recorded vide Section 108 has been given some special status as to its acceptability in relation to proceedings under the Act but there no provision like the one found in Regulation 23(3), exist for the purpose of adjudication under the said Act - Notice u/s 124 has to be served which also includes the statements recorded u/s 108 and the other side has an option to ask for production of such persons for cross-examination - Both recording of evidence and offering the persons for cross-examination has been made mandatory under Regulation 23(4) - Non-examination of these two passengers and non-offering them for cross-examination to the delinquent, therefore, makes their statements recorded in other proceedings not admissible - There is also no allegation that these two passengers have been intentionally kept away by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Amit Prabhudas Pattani grossly misused his CHA licence for monetary gains and also failed to control his CHA licence and the actions of his employees resulting in gross misuse of the said CHA licence. Due to these acts of omission and commission on the part of the appellant and its employees, various fraudulent operators of export firms claimed and availed huge amount of export incentives like duty drawback and DEPB credit. Thereby the appellant s CHA licence was suspended vide order No. 08/2010, dated 16-7-2010. The suspension was subsequently confirmed vide order No. 26/2010, dated 22-10-2010. The articles of Charges were framed under Regulations 12, 13(a), 13(d), 13(n) and 19(8) of the CHALR, 2004. The Inquiry was conducted under Regulation 22 of CHALR, 2004. The Inquiry Officer held all five charges as proved. The learned Commissioner after considering the written and oral submission of the appellant revoked the licence of the appellant under Regulation No. 22(7) and 20(1) of CHALR, 2004. Aggrieved by the same the appellant is in appeal. 3. The contention of the appellant so far as the charge that the appellant transferred the licence and the violation of Regulation 12 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Presiding Officer during the Inquiry whereby he also produced copies of authorization letters. He has also stated that he has been engaging the services of different CHAs for attending to the customs clearance work and the procedure irrespective of CHA engaged. 3.2 The contention is that Shri Amit Pattani, partner of the appellant was also examined and cross-examined from which it is clear that there is no violation of the provisions of CHALR and before investigating officers he has also gave details of 11 employees who were working for the appellant. None of the employees have been questioned at any point of time nor it is the case of the department that they have not attended to the examination of the cargo or to any other work relating to the clearance. The contention is that no evidence of any kind what so ever brought on record during the Inquiry Proceedings to even remotely indicate that the CHA Licence has been transferred. 3.3 The contention is that during the course of the examination of the witness Shri Amit Pattani partner of the appellant produced authorization letters of 95 various clients. The two independent witnesses examined during the Inquiry. Shri S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment in the case of certain exporters and that there has been a fraud in those exports and the exporters are not available for investigation and he had stated that the partner of the appellant had instructed him to sign such declaration, the contention is that Shri Sayed Sattar was not examined during the Inquiry proceedings nor the statements said to have been made by him are brought on record. Moreover, even if the partner of the appellant could have authorized him would not have been accepted by the department because such documents are examined by different set of officers on different points as under :- (a) By the officers concerned with assessment of the consignment in the group. (b) By the officer concerned with the examination of the cargo as the examination is carried out on the basis of the said declarations, and (c) By the officer concerned with the granting of the Let Export Order who also retains all such documents. The contention is that the appellant came to know about the fraud committed by the employee only when the DRI officers showed him the documents and questioned the partner about the said exports and the documents thereof. Soon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal s decision in the case of Jagdeo Prasad (supra) relied upon by the department submitted that the said judgments relate to the action initiated under the provisions of Customs Act, 1962 and the Central Excise Act, 1944 which are entirely different from the proceedings initiated under the CHALR, 2004. In support of their contention the appellant also placed reliance on the Tribunal decision in the case of Eicher Shipping Agency v. Collector of Customs - 1994 (69) E.L.T. 90 (Tri.). 6.1 We have carefully considered the submissions made by both the sides and perused the records. 6.2 So far as the charge of contravention of Regulation 12 of CHALR, 2004 is concerned admittedly the department s case is mainly based on the statement revolved under Section 108 of Customs Act, 1962 in case of Shri Sagar Dattatray Rakshe, the proprietor of M/s. Shri Jayendra International one of the 10 persons to whom the licence alleged to have been transferred. In this regard we find that Shri Sagar Dattatray Rakshe on examination during Inquiry categorically stated that he has engaged the service of the appellant (CHA) for attending to Custom clearance work. He also submitted that he sent the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d efficiency we find that the appellant has delayed in dealing with the clearance work or that there was any inefficiency on the part of the appellant. Furthermore one of the witnesses examined during proceedings stated that he has been giving the work of clearance of about 20 clients and that in these cases there was no complaint of inefficiency. 6.6 As regard the charge that the appellant did not supervise the employee and that Shri Sayed Sattar illegally signed customs documents on behalf of the appellant to get check list of shipping bills and examination of export cargo with the knowledge and instructions of Shri Amit Pattani, the partner of the appellant, we find force in the contention of the appellant that Shri Sayed Sattar was not examined during the Inquiry proceedings nor the statements said to have been made by him were brought on record. Admittedly Shri Sayed Sattar was not authorized to sign the declarations/documents, in such a situation even if the partner of the appellant could have authorized him would not have been accepted by the department because such documents are examined at various stages by the officers concerned with assessment/examination/Let Export O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry under the Regulations, specific procedure has been provided for in Regulation 23. When specific procedure is provided for, the general procedure provided for, for holding adjudication proceedings under the Customs Act, would not stand attracted. Clauses 3 and 4 of Regulation 23 of the Regulations read thus : - (3) The Assistant Collector of Customs shall, in the course of Inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the enquiry in regard to the grounds forming the basis of the proceedings and he may also put any question to any person tendering evidence, for or against the Customs House Agent, for the purpose of ascertaining the correct position. (4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of proceedings and where the Assistant Collector of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. From this, therefore, it is very clear that for the purpose of making use of any oral evidence, in these proceedings, such evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
