9911796707
TMI Blog2011 (3) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-Mum. filed by the CHA. The Tribunal s order, however, granted liberty to the Commissioner to proceed against the CHA for revocation or otherwise of the licence under the appropriate provisions of the CHALR. Subsequently, by an order dt. 12.8.2005, the respondent-Commissioner revoked the suspension of the licence. Since then, the appellant had been functioning as CHA. 2. Later on, a notice of enquiry was issued on 24.10.2005 by the Commissioner to the CHA under Regulation 22(1) of the CHALR for alleged violation of certain regulations. The notice alleged that, in connection with the import of a consignment of blank audio and video cassettes by M/s. Tony Enterprises vide bill of entry No. 7227 dated 31.8.2000 under Advance Licence Scheme, the appellant violated Regulations 12, 13(a), 13(d) & 13(k) of the CHALR. These allegations were based inter alia on statements recorded under Section 108 of the Customs Act from Shri Dinesh P. Mehta (CHA), Shri Dilip Shah, Shri Shantaram Dongre and Shri Dhirej K. Bhanushali, as also on certain documents. All the four charges leveled agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re holding a Customs House pass on behalf of the CHA and therefore should be considered as the CHA s employees . The above finding of the Tribunal is binding on the department as, admittedly, it was not appealed against. The inquiry officer rightly relied on the above finding of the Tribunal and treated Shri Dilip Shah and Shri Shantaram Dongre as employees of the CHA. Where the employees of the CHA have used the CHA licence for clearance of the imported goods, it cannot be said that the licence was sold or otherwise transferred by the CHA in violation of Regulation 12 of the CHALR. The reasons stated by the learned Commissioner to disagree with the finding of the inquiry officer stems from misinterpretation of the conclusive sentence of para (1) of the Tribunal s order dated 24.6.2005, which reads However the Commissioner is at liberty to proceed against the CHA under the Regulations for revocation or otherwise of the licence under appropriate Regulation . This sentence only meant that the setting aside of the suspension of CHA licence did not stand in the Commissioner s way of proceeding against the CHA under Regulation 22 of the CHALR. It did not mean anything else. The aforequo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not directly involved in the Customs clearance of the above consignment. The statements were voluntary and hence, could be relied on as per the High Court s ruling in Jasjeet Singh Marwaha s case. No valid authorization in writing of M/s. Tony Enterprises authorizing the appellant to handle any particular import consignment has been produced in this case. One undated letter of M/s. Tony Enterprises addressed to M/s. Sainath Clearing Agency has been produced, which does not contain anything to indicate that the appellant was engaged to handle the import consignment in question. It is true that there is no prescribed format for an authorization under Regulation 13(a). However, this does not mean that Regulation 13(a) does not require an authorization in writing. The said regulation makes it obligatory for a CHA to obtain authorization from his client and keep the same to be produced as and when required by the Assistant/Deputy Commissioner of Customs. Obviously, it should be in writing. In the normal course of importation and clearance of goods, the importer would supply the import documents such as Import General Manifest, Invoice, Packing List etc. to his CHA with a covering le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he did so in discharge of CHA s obligation under the CHALR. The CHA cannot be held liable for anything done or omitted to be done by their employee beyond the purview of the CHA s obligations under the CHALR. Nothing contained in Section 147 of the Customs Act nor anything held by the Hon ble High Court in the case of Commissioner of Customs (General) Vs. Worldwide Cargo Movers (judgment dated 29.11.2006 in Customs Appeal No. 37/2006) can be applied to such commissions/omissions of an employee of the CHA. Therefore, the reliance placed by the learned SDR on Section 147 of the Customs Act and on the decision of the Hon ble High Court in the case of Worldwide Cargo Movers case in his bid to show that Shri Shantaram Dongre and his employer CHA have vicarious liability in respect of the alleged post-clearance diversion of the goods cannot advance the respondent s case. In the result, Charge III framed against the appellant is untenable. 9. Charge IV against the appellant is that they committed breach of Regulation 13(k) by not maintaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
