TMI Blog2011 (3) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... rt which showed the documents to be accounted for - Decided in the favour of the assessee - C/221/2008-Mum. - - - Dated:- 3-3-2011 - Mr. P.G. Chacko, Mr. Sahab Singh, JJ. Shri Arun Mehta, Advocate for appellant Shri M. Manish Mohan, Authorized Representative (DR), for respondent Per : P.G. Chacko M/s. Sainath Clearing Agency (Proprietor : Shri Dinesh P. Mehta) is the appellant who is aggrieved by the Commissioner s order revoking CHA licence No.11/1030 and forfeiting security deposit under Regulation 22(7) of the Customs House Agents Licensing Regulations, 2004 (CHALR). The said licence was obtained by the appellant under the relevant provisions of the erstwhile Customs House Agents Licensing Regulations, 1984. It was suspended by the respondent-Commissioner on 4.5.2005 under Regulation 20(2) of the CHALR upon receipt of a report from the DRI regarding the alleged involvement of the CHA in a case of misuse of Advance Licence Scheme by one M/s. Tony Enterprises. The suspension was ordered pending enquiry under Regulation 22 of the CHALR, but the same was set aside by this Tribunal by order No. A/529/WZB/2005/C-II dated 24.6.2005 in appeal No. C/447/2005-M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been challenged by the department and, therefore, its decision is binding on them. Accordingly, counsel submits, the view taken by the Commissioner against the appellant by assuming that the aforenamed persons were not employees of the CHA and were acting independently cannot be sustained. The learned counsel submits that the respondent has no case that the CHA licence was sold or otherwise transferred to the aforenamed persons. Therefore, according to counsel, there is no question of the appellant having committed breach of Regulation 12 of the CHALR. The learned SDR has opposed the above arguments of the learned counsel by relying on the findings of the respondent-Commissioner. 4. After considering the submissions, we agree with the learned counsel. Referring to Shri Dilip Shah and Shri Shantaram Dongre, this Tribunal vide order No. A/529//WZB//2005/C-II dated 24.6.2005 ibid held thus: The two persons who were acting on behalf of the CHA were the employees of the appellant. They were not (sic.) being paid a regular monthly salary. All the same they were holding a Customs House pass on behalf of the CHA and therefore should be considered as the CHA s employees . The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act was not to be used as evidence under the CHALR. The learned SDR has opposed by submitting that such statements are also admissible as evidence in proceedings against a CHA. In this connection, he has relied on Jasjeet Singh Marwaha Vs. Union of India 2009 (239) ELT 407 (Del.), wherein it was held that a statement recorded under Section 108 of the Customs Act was admissible in evidence for suspending CHA licence if the statement was voluntary and truthful. 6. We have considered the submissions. In his statement dated 19.3.2004, Shri Dinesh Mehta categorically stated that he had not personally dealt with any person from M/s. Tony Enterprises and that the business was procured and handled exclusively by his employees. Shri Dilip Shah, in his statement dated 19.3.2004, confirmed that he along with Shri Shantaram Dongre attended to the Customs clearance of the consignment of M/s. Tony Enterprises covered by Bill of Entry No. 7227 dated 31.8.2000. It would appear from these statements of Dinesh Mehta and his employee Dilip Shah that the former was not directly involved in the Customs clearance of the above consignment. The statements were voluntary and hence, could be relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port obligation. He has submitted that the transportation of the goods diverted by the importer was arranged by Shri Shantaram Dongre with the knowledge of the CHA. He has submitted that the appellant did not inform the Deputy Commissioner or Assistant Commissioner of Customs that the goods were being diverted. According to him, this conduct of the CHA amounted to breach of Regulation 13(d). The learned SDR has also relied on the findings of the inquiry officer, who held the above charge to have been proved. 8. After considering the submissions, we are of the view that the charge against the CHA cannot be held to have been proved. The charge is based on Shri Shantaram Dongre s conduct post-importation. Once the goods are cleared upon completion of Customs formalities and out-of-Customs-charge order under Section 47 of the Customs Act is obtained by the CHA and delivered to his client, there is nothing else to be done by the CHA. It is not the CHA s obligation under the CHALR to arrange post-clearance operations like transportation of the goods for his client. If Shri Shantaram Dongre arranged any such transportation of the goods of M/s. Tony Enterprises, it cannot be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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