TMI Blog2006 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA licence once cancelled, may be revived on considerations such as prejudice to the livelihood of the CHA and its employees, hardship already suffered, period for which the licence was inoperative. This revocation is required to be set aside and the licence restored on fresh security and obtaining a competent Rule 8 employee s service. Thus, the appeal is to be allowed. - Smt. Archana Wadhwa, Shri S.S. Sekhon, JJ. REPRESENTED BY : Shri S.N. Kantawala, Advocate, for the Appellant. Shri U.H. Jadhav, JDR, for the Respondent. [Order per : S.S. Sekhon, Member (T)]. - The appellant is a CHA Licensee under the provisions of the Custom House Agents Licensing Regulations, 1984 (CHALR for short). The said licence has been ordered to be revoked/cancelled vide impugned order dated 17-1-2006 and the security furnished by the licensee at the time of issue of the license has been ordered to be forfeited. Hence this appeal. 1.2 The appellant, pursuant to the licence issued, was handling the export/import consignment of several clients at Mumbai, Nhava Sheva ports. 1.3 The department find serious violations of the provisions of the Customs Act, 1962 allegedly against the licensee and an employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the CHA failed to take immediate action against this employee and also to bring the matter to the notice of the department, who had issued the licence, as also that the licensee had no control in supervision on his employee Shri Rehman Iqbal Shaikh and they failed to ensure proper conduct of the said employee while he was under their employment calling for violation of provisions of Regulations 19(8), 13(n) and 20(i)(c) of CHALR 2004 and the said licence was suspended on 2-11-2005. A writ petition was filed in the Hon ble Bombay High Court against the suspension Order which was dismissed and enquiry proceedings were initiated. An SLP was referred against the said Order of the Hon ble High Court before the Hon ble Supreme Court, however, in the meantime the Licence itself was revoked. 1.5 Notice was issued to the Appellant on 23-11-2005 framing the following six charges - (i) Article of Charge - I - regarding violation of Regulation 13(d) of CHALR, 2004 which stipulate that the CHA shall advise his client to comply with the provisions of the Act and in case of non-compliance shall bring to the notice of the DC or AC of Customs, (ii) Article of Charge - II - regarding violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department. 1.7 After grant of personal hearing which had been attended by the partner of the licensee firm who submitted that it came to know about the unauthorized activity of Shri Rehman I. Shaikh only on receiving the adjudication order dated 18-7-2005 from the Air Cargo Complex in respect of the case concerning the unauthorized import of Volkswagaon under Bill of Entry No. 252983 dated 11-4-2005 and as regards the second case of outright smuggling of Mercdes car which happened at Jawaharlal Nehru Custom House in May, 2005, he came to know about the allegations only when the said employee was arrested. The said employee was thereafter dismissed from the service and the license as well as Custom pass were surrendered to the department. None of the partners were directly or indirectly involved to the two incidents of violation of the Customs violations attributed to the employee Shri Rehman I. Shaikh. 2.1 Heard both sides and it is found that : (a) The question of vicarious liability of the appellant firm for the alleged conduct of its employee are the crux of the issues involved in this case. The appellant firm have not been issued any Show Cause Notice for the alleged complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connivance of the employer and or in the course of the employment of the firm. (c) Shri Rehman I. Shaikh, was only an employee though qualified employee under Rule 8, he was employed to perform certain functions which he is required to perform under the law and the duties prescribed by the firm have been found to be a violation. The violations, if any, are all beyond the call of the normal duties of this employee. He is not a licence holder as observed in paras 13 and 38 of the impugned order. He is an employee who has passed the qualifying test conducted by the Custom House for and such an employment, as envisaged under the Regulations. The firm was required to appoint such a person. There is no material on record to show that the firm has appointed this person with any preconcert or knowledge of the employee to be engaging himself subsequent to such an appointment in the said activities. The reliance of the adjudicator on the proceedings initiated against Shri Rehman I. Shaikh, in his individual capacity, can therefore be no reason for a violation or infringement of the regulations by the CHA firm to call for revocation of their licence. (d) In this view of the matter, the revoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of addresses of each Importer, and the pre-importation arrangements of individuals, with any other person, when the name of the individual appears as Importer on the shipment documents. (ii) The Appellant cannot be held liable for any undervaluation and cannot be expected to verify the authenticity of the value appearing on invoices submitted to the Customs for verification with the actual goods imported under the cover of such invoice Regulation 13(e) therefore, cannot be said to be violated by the Appellant. (iii) Shri Ahmed Imran held himself as Importer and submitted documents showing him as Importer of the car. The IGM also showed him as the Importer and accordingly, Bill of Entry No. 252983, dated 11-4-2005 was allowed to be filed. Therefore, violation of regulation 13(1) cannot be alleged. (iv) The misdeeds and illegalities committed by Shri Rehman I. Shaikh cannot be said to have been done in regard to his employment. Therefore, violation of Regulation 19(8) cannot be held as sustainable. (v) The ld. Commissioner held that Shri Rehman Shaikh was actively involved in the violation and the Appellant failed to take any action against him to prevent such violation. After being ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
