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TMI Blog2010 (1) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant under Regulation 22(1) of the CHALR, 2004. One of these notices was issued on 9-6-2008 and the other on 10-6-2008. Six charges were raised against the CHA in each of these notices. An Assistant Commissioner of Customs was appointed as the Inquiry Officer. The CHA filed written statements of defence. The Inquiry Officer submitted his report upon completion of the proceedings. After considering this report and other materials available on record, the Commissioner of Customs, by two separate orders, one issued on 25-8-2008 and the other on 22-8-2008, revoked the CHA licence under Regulation 22(7) of the CHALR, 2004. The present appeals have been filed under Section 129A of the Customs Act read with Regulation 22(8) of the CHALR, 2004. 2. The suspension of the CHA licence and its subsequent revocation by the Commissioner of Customs are traceable to the customs clearance work pertaining to two shipping bills dated 18-7-2007 filed in the name of M/s. Darshan International, Surat and six shipping bills dated 19-7-2007 filed in the name of M/s. Kumar Enterprises, New Delhi. All these shipping bills were filed for export of goods declared to be ladies garment accessories u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of the export goods. He had received the export documents of M/s. Darshan International from one Shri Ashok Vange and those of M/s. Kumar Enterprises from one Shri Tejas Desai. At the time of receiving the documents from the said persons, Shri Vikas Doshi was not given any copy of IEC (Import Export Code) nor did he ask them as to who was the IEC holder. Shri Vikas Doshi did not obtain any authority letter from the two exporters. He was present during the examination of the goods after the same was intercepted by officers of the Directorate of Revenue Intelligence. In his statement dated 4-9-2007, recorded under Section 108 of the Customs Act, he stated that the goods were over valued by five to six times the actual value. He also stated that he had received payment at the rate of Rs. 4.50 per piece of the goods in respect of both the exporters. Out of this amount of Rs. 4.50 per piece, 50 paise was towards his agency charges and the balance of Rs. 4/- was towards other expenses incurred during clearance of the goods. Thus Shri Vikas Doshi had received cash of Rs. 19,000/- from M/s. Darshan International and Rs. 36,000/- from Kumar Enterprises. Shri Vikas Doshi was not an emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng bills through Customs takes at least half a day and unloading of cargo is subject to availability of space. We are enclosing herewith few copies of our Shipping Instructions and request you to kindly get filled up the necessary columns by your respective exporters duly stamped and signed by them and return the same along with the export documents. Please sign the duplicate copy of this letter and mail to us for our records. It was argued that the shipping bills in this case were filed in terms of the above contract of service and that nothing illegal was done by the appellant. However, any agency fee was not recovered from Shri Vikas Doshi in respect of the subject shipping bills. The counsel submitted that the shipping bills and other export documents (signed by the exporters) supplied by Shri Vikas Doshi were duly filed by the appellant through their employee Shri Nikharge, G Card holder and therefore, the relevant regulations were substantially complied with. The learned counsel, in his endeavour to rebut the findings of the Commissioner, referred to the record of oral evidence taken by the Enquiry Officer. He also relied on certain decisions of this Tribunal includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he charge was proved against the appellant. We do not find valid reason to sustain this finding of the Commissioner. There is no evidence of the CHA licence having been sold or otherwise transferred by the appellant to Shri Vikas Doshi. A sale has to be established with proof of a valuable consideration having been received by the seller from the buyer. There is no such proof in this case. It is on record that the shipping bills were all signed by an employee of CHA. The CHA licence number was used by the employee of the CHA and not by anybody else in this case. Therefore, the licence cannot be said to have been transferred by the CHA to Shri Vikas Doshi. We note that, in the cases of P.P. Dutta (supra) and Crown Shipping Agency (supra) cited by the counsel, it was held in comparable circumstances that sale/transfer of CHA licence had not been established. In the result, we hold that the first charge against the appellant has not been proved. 8. The remaining charges are based on some of the provisions of Regulation 13, which are reproduced below : 13. Obligations of Customs House Agent. A Customs House Agent shall - (a) obtain an authorisation from each of the compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The oral evidence given by Shri Vikas Doshi under Section 108 of the Customs Act also did not show that the appellant had any authorisation in writing from the exporters. It appears from the contract of service (vide para 5 of this order) as also from the oral evidence of Shri P.S. Parmesh and Shri Vikas Doshi that Shri Vikas Doshi stood as an intermediary between the exporters and the CHA and that the CHA was directly accountable to Shri Vikas Doshi in respect of export consignments canvassed by the latter. The CHA did not even know who those exporters were. They did not render CHA service to the exporters or bill them. They billed Shri Vikas Doshi who, it appears, billed the exporters or their agents. On these facts, the case law cited by the learned counsel is of no avail. The charge of breach of Regulation 13(a) stands proved. 9. The third charge relates to Regulation 13(b) which requires a CHA to transact business in the Customs Station either personally or through an employee duly approved by the Deputy/Assistant Commissioner of Customs. In the instant case Shri Vikas Doshi in his statement stated under Section 108 of the Customs Act that he had done the entire customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to a client with reference to any work related to clearance of cargo or baggage. It is on record that the export consignments were canvassed by Shri Vikas Doshi for customs clearance under the CHA licence held by the appellant. He supplied the export documents to the appellant. He undertook the customs clearance work. The limited contribution of the appellant was that their employee Shri Nikharge signed the shipping bills. The rest of the work was done by Shri Vikas Doshi, which is a fact borne on record. Shri Vikas Doshi admitted that the goods were overvalued five to six times the actual value. According to the department, the CHA had an obligation to impart correct information to the exporters regarding all particulars including the value of the goods. According to the appellant, it was not the function of the CHA to ensure correctness of the declared value or other particulars of the goods given in the shipping bills. In this context, the Hon ble High Court s ruling in Jasjeet Singh Marwaha s case is significant. One of the questions of law considered by the Hon ble High Court was whether a CHA could be penalised for mis-declaration under the CHALR, 2004. The Hon ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the import or export of goods at any customs station, he should also ensure that he does not act as an Agent for carrying on certain illegal activities of any of the persons who avail his services as Custom House Agent. In such circumstances, the person playing the role of Custom House Agent has got greater responsibility. The very prescription that one should be conversant with the various procedures including the offences under the Customs Act to act as a Custom House Agent would show that while acting as Custom House Agent, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as a CHA by taking advantage of his access to the Department. The grant of licence to a person to act as Custom House Agent is to some extent to assist the Department with the various procedures such as scrutinising the various documents to be presented in the course of transaction of business for entry and exit of conveyance or the import or export of the goods. In such circumstances, great confidence is reposed in a Custom House Agent. Any misuse of such position by the Custom House Agent will have far reaching consequences in the transaction of bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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