TMI Blog2010 (10) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... license is set aside maintaining the order to the extent it forfeits the security deposit in the sum of Rs. 25,000/-. - 7 of 2006 - - - Dated:- 6-10-2010 - V.C. Daga and R.M. Savant, JJ. REPRESENTED BY : Shri Pradeep S. Jetly, for the Petitioner. S/Shri S.N. Kantawala, i/b. Yogesh Rohira, for the Respondent. [Judgment per : V.C. Daga, J.]. This appeal is directed against the order dated 23rd August, 2005 passed by the Customs, Excise Service Tax Appellate Tribunal, Mumbai ( Tribunal for short) [2005 (189) E.L.T. 451 (Tri. - Mumbai)] raising following reframed substantial question of law : Whether non joining of the respondent as a co-noticee in the show cause notice under the Customs Act, 1962 vitiates disciplinary proceedings initiated under CHALR, 1984 made under Section 146(2) of the Act. Factual background : 2. The factual background giving rise to the aforesaid question of law is as under : A Bill of Entry dated 12th February, 2001 was filed by the importer M/s. S.B. Impex ( the importer for short) declaring the same as Sodium Bicarbonate, where the respondent acted as the Customs House Agent ( CHA for short). The goods were examined. The cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asion to suspect the bona fides of the importer. It is further submitted that merely because the authorization was not obtained that by itself could not be a ground for severe punishment leading to cancellation of licence permanently. It was also urged that the respondents were not issued show cause notice under Section 124 of the Act for penalty under Section 112 ibid mis-declaration of the goods seized in the warehouse ascribed to have been cleared with assistance of the appellants. It is thus urged that absence of notice or action against CHA under the provisions of the Act would indicate that they were totally innocent for the alleged import and that the impugned action was initiated after a lapse of four years from the date of import. It is thus urged that no action could, therefore, be initiated against the CHA. It is further submitted that an Intelligence Unit of the Customs House had investigated the alleged clearance of Titanium Dioxide said to have been declared as Sodium Bicarbonate and that they themselves had given no objection certificate for revival of the licence to the CHA Company from time to time, if this be so no case of cancellation of the CHA licence and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 13 of the CHA licence Regulation 2004, the perusal of which would demonstrate that there is no obligation on the part of the CHA for carrying out examination of the imported goods or to help the officers examining such goods. He, thus, submits that the impugned action against the CHA was unwarranted and that the Tribunal was justified in setting aside the order of the Commissioner. 11. Mr. Kantawala further submits that the proceedings were initiated by the Custom Officers under the provisions of the Act against the importer and on the same allegations, the action is taken against the CHA respondent herein. He, thus, submits that the allegations against the importer and the CHA being common, it was obligatory on the party of the Department to make the CHA, a co-noticee and that the CHA ought to have been tried along with importer. Once the CHA is left out from the proceeding under the Act, then by way of disciplinary action, the same object cannot be achieved. He, submits that what cannot be done directly, cannot be allowed to be done indirectly. 12. Mr. Kantawala further submits that looking to the CHA s reputation and unblemish record and failure on the part of the Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de limitation for such appeals. Sub-section (1) of Section 146 mandates that no person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted in this behalf in accordance with the regulations. The Regulations, known as CHALR, 1984 is framed in exercise of powers conferred under Section 146(2) of the Act. It is, thus, clear that Section 146 of the Act read with the regulations framed therein is a Code by itself. Reading of CHALR, 1984 would unequivocally demonstrates that it creates certain obligations on the CHA and provides for the modality for discharge of obligations created. It also provides, how to deal with the licence holder (CHA) in the event of misconduct or dereliction of duty or breach of the terms of the license. Under these circumstances, the action under Section 146 read with Regulations framed thereunder are independent of the other actions contemplated under the Act. 16. It is no doubt true that in certain circumstances, if the particular act or omission is jointly committed by the CHA along with the importer or exporter then it could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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