2017 (3) TMI 1494 - HC - Customs

Revocation of CHA licence - forfeiture of security deposit - penalty - it was alleged that there was a deliberate mis-declaration apropos the quality quantity value and weight of the consignments with the intention to defraud the government and illegitimately claim the benefit of duty-drawback - Held that - Any act to defraud presupposes the intention to obtain something fraudulently - In the present case there is no evidence of active facilitation of clearance of the consignment through customs by the appellant hence no mens rea can be inferred to defraud the government for obtaining duty drawback through a fraudulent transaction. Consequently the appellant cannot be faulted or punished in the manner it has been. The CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect to clearance of goods through customs house and in that process only such authorized personnel of the CHA can enter the customs house area. What is noteworthy is that the IE Code of the exporter M/s H.M. Impex was mentioned in the shipping bills this itself reflects that before the grant of said IE Code the background check of the said importer/ exporter had been undertaken by the customs authorities therefore there was no doubt about the identity of the said exporter. It would be far too onerous to expect the CHA to inquire into and verify the genuineness of the IE Code given to it by a client for each import/ export transaction. When such code is mentioned there is a presumption that an appropriate background check in this regard i.e. KYC etc. would have been done by the customs authorities. There is nothing on record to show that the appellant had knowledge that the goods mentioned in the shipping bills did not reflect the truth of the consignment sought to be exported. In the absence of such knowledge there cannot be any mens rea attributed to the appellant or its proprietor. The revocation of the appellant s CHA license is unjustified and is accordingly set aside - the forfeiture of the security amount and the imposed penalty of Rs. 1 lakh also is set aside - appeal allowed - decided in favor of appellant-CHA.

The core legal questions considered in this judgment include:

1. Whether the Customs House Agent (CHA) can be held liable for misdeclaration and fraudulent claims made in shipping bills filed by its employee without the CHA's knowledge or authorization.

2. The extent and nature of due diligence obligations imposed on a CHA under the Customs House Agents Licensing Regulations (CHALR), 2004, particularly Regulation 13(e) and related provisions.

3. Whether the revocation of the CHA license and imposition of penalty under Section 114 of the Customs Act, 1962, were justified on the facts of the case, especially in the absence of mens rea or knowledge of fraudulent acts on the part of the CHA.

4. The applicability and interpretation of precedent judgments concerning the liability of CHAs for acts of their employees or agents, and the proportionality of penalties such as revocation of license.

5. The responsibilities of the Customs authorities regarding verification of the genuineness of exporters, particularly the role of the Import Export Code (IE Code) in establishing the identity of exporters.

Issue-wise Detailed Analysis

1. Liability of the CHA for Misdeclaration and Fraudulent Claims by Employee

The legal framework primarily involves the CHALR, 2004, especially Regulation 13 which outlines the obligations of a CHA, and Section 114 of the Customs Act, 1962, which empowers penalty imposition. Precedents such as Worldwide Cargo Movers and H.B. Cargo Services emphasize that a CHA's license may be revoked for grave misconduct, including active facilitation or gross dereliction of duty.

The court examined the facts that the shipping bills filed by the appellant's employee declared exports in the name of a non-existent entity, M/s H.M. Impex, with misrepresented weight and quality to claim undue duty drawback. However, the appellant contended that the employee, Mr. Lalit Katoch, was unauthorized to file such documents and that the appellant had no knowledge of the fraudulent nature of the consignments.

The court noted that the CHA did not defend the employee's actions but claimed ignorance and lack of authorization. The CHA's proprietor asserted that the employee was only a marketing executive without authority to sign or file customs documents. The court emphasized that fraud requires intent (mens rea), which was not established against the appellant. The absence of knowledge or active facilitation by the CHA meant that the misdeclaration could not be attributed to it.

The court also considered that the CHA's due diligence under Regulation 13(e) relates to information imparted by the CHA to clients, not an investigatory duty to verify every detail supplied by the client or exporter. The CHA acts as a processing agent, relying on the client's information, and is not expected to verify the genuineness of the exporter or the consignment beyond reasonable checks.

2. Due Diligence Obligations of the CHA under CHALR, 2004

Regulation 13(e) requires the CHA to exercise due diligence regarding information given to clients in relation to clearance of cargo. Regulation 13(l) mandates that all documents such as shipping bills must prominently display the name of the importer/exporter and the CHA.

The court clarified that these obligations do not extend to verifying the authenticity of the exporter or the IE Code provided by the client. The presence of the IE Code on shipping bills indicates prior verification by customs authorities, who are responsible for background checks and validation of the exporter's credentials.

The court reasoned that imposing a duty on the CHA to verify the genuineness of the IE Code or the exporter's existence would be onerous and beyond the regulatory scheme. The CHA's role is to process documents based on client instructions, and misdeclaration by the client does not automatically implicate the CHA absent knowledge or complicity.

3. Justification for Revocation of License and Penalty Imposition

The penalty of revocation and forfeiture of security deposit was challenged as disproportionate and unjustified given the lack of mens rea or active facilitation by the CHA. The court relied on the principle of proportionality in disciplinary actions, as elaborated in the cited Ashiana Cargo Services case, which emphasized that revocation is reserved for grave violations involving aggravating factors such as knowledge, active facilitation, or gross misconduct.

The court distinguished cases where revocation was upheld due to active fraud or gross violations by the CHA or its authorized agents. In contrast, the present case lacked evidence that the appellant had knowledge or involvement in the fraudulent acts. The employee's unauthorized actions could not be imputed to the appellant to justify the severe penalty of license revocation.

The court also noted that the appellant's license had been suspended since 2005, amounting to a severe penalty in itself, and that this should serve as sufficient reprimand. The imposition of additional penalty and forfeiture was therefore set aside as unjustified.

4. Applicability of Precedents and Treatment of Competing Arguments

The appellant relied on the CESTAT judgment in M/s Pranil Shipping, which was found by the tribunal to be inapplicable due to differing facts. The respondent relied on judgments such as Worldwide Cargo Movers and H.B. Cargo Services, which support revocation for serious misconduct.

The court analyzed these precedents in detail, noting that they involved either mens rea, active facilitation, or gross violations by the CHA or its authorized representatives. The present case, involving unauthorized acts by an employee without the CHA's knowledge, did not meet this threshold.

The court also addressed the respondent's argument that the CHA failed to verify the exporter's identity and consignment details, holding that such verification is not the CHA's responsibility but that of the customs authorities issuing the IE Code.

5. Responsibilities of Customs Authorities Regarding Verification of Exporters

The court underscored that the IE Code granted to M/s H.M. Impex presupposes that customs authorities conducted background checks and verification. If the IE Code was erroneously granted to a non-existent entity, the fault lies with the authorities, not the CHA who relied on the IE Code as proof of exporter's legitimacy.

The court emphasized that the CHA is entitled to rely on the IE Code as an official validation of the exporter's identity and locus standi, and cannot be expected to conduct independent verification of the exporter's existence or address.

Significant Holdings

"Regulation 13(e) of the CHALR 2004 requires the CHA to: 'exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage' (emphasis supplied). The CHA's due diligence is for information that he may give to its client and not necessarily to do a background check of either the client or of the consignment."

"Furnishing of wrong or incorrect information cannot be attributed to the CHA if it was innocently filed in the belief and faith that its client has furnished correct information and veritable documents. The mis-declaration would be attributable to the client if wrong information were deliberately supplied to the CHA."

"Any act to defraud presupposes the intention to obtain something fraudulently. In the present case, the appellant (through its proprietor) has all along contended that the documents were filed unauthorizedly by a person incompetent to do so; it has not defended the action of Mr. Lalit Katoch; it claims ignorance and innocence of the contents of the consignment; it objects to the very filing of the two shipping bills by either Mr. Katoch or any person authorised on its behalf, hence there cannot be a presumption of its deliberate act/intention to defraud."

"The revocation of the appellant's CHA license is unjustified and is accordingly, set aside. The revocation of license which is in operation since 2005 i.e. almost 12 years, is itself a severe punishment and could also serve as a reprimand to the CHA to conduct its affairs with more alacrity."

The court concluded that the CHA was not liable for the fraudulent misdeclaration made by its employee without authorization or knowledge. The obligations of due diligence under CHALR, 2004, do not extend to verifying the genuineness of the exporter or the consignment beyond reliance on the IE Code. The penalty of revocation and forfeiture imposed on the CHA was disproportionate and unjustified in the absence of mens rea or gross misconduct. The revocation order, penalty, and forfeiture were set aside, and directions were given for refund and consideration of license extension or fresh application as per rules.

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