TMI Blog2011 (2) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... unds which are not admitted by the CHA, no such procedure as contemplated under regulation 22 of the Regulations has been carried out by the Commissioner, Had such a procedure been followed by the Commissioner, the Deputy Commissioner of Customs or Assistant Commissioner of Customs while conducting the inquiry as contemplated under sub-regulation (2) of regulation 22 of the Regulations would be required to inquire into all facts which were not admitted by the CHA, which in the present case would be the routine practice of the department of permitting the employees of the CHAs to take the files of the department to the office premises of the CHA for the purpose of further processing, no such inquiry has been caused to be made by the Deputy Commissioner of Customs or Assistant Commissioner of Customs as contemplated under regulation 22 of the Regulations, causing immense prejudice to the respondent CHA, it is not possible to state that the Tribunal has committed any legal error so as to give rise to any question of law, much less, a substantial question to law. The appeals, being devoid of merit, are therefore, dismissed - Tax Appeal Nos. 4-5 of 2011 - - - Dated:- 17-2-2011 - Hars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA, the Tribunal took note of the fact that the respondent CHA had taken a plea that there was a practice in Customs House of supplying the files to CHA for various purposes of completion or typing etc. According to the Tribunal, the Commissioner was duty bound to verify the above fact and record the finding thereto. The Tribunal agreed with the learned Junior Departmental Representative that recovery of official files from the premises of CHA is serious offence. It, however, took note of the fact that no explanation was coming from the Customs House as to how the files reached the CHA s office. The Tribunal observed that it was not the revenue s case that the files were stolen from the office or that there was a theft and that if the files have been found in the CHA premises, that must be with the consent of the concerned officer. It was further noted that the Commissioner had not called for the explanation of any officer responsible for the safe custody of the said files so as to find out as to how the files travelled from the Custom House to the CHA s office. The Tribunal, accordingly, held that if the proper officer himself is giving the files to the CHA, it cannot be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced reliance upon the investigation carried out by the DGCEI and has passed the impugned order accordingly. In the circumstances, the Tribunal was not justified in holding that no detailed inquiry had been made and that there was nothing on record to indicate as to whether the importers had been issued notices for recovery of sanctioned refund claims, as all these facts were irrelevant for the purpose of considering the validity of the order suspending the licence of the respondent. 6. Inviting attention to the provisions of Regulation 20 of the Regulations, it was submitted that the Commissioner of Customs is empowered to revoke the licence of the Customs House Agent and order forfeiture of part or whole of the security in connection with any of the grounds stated therein. Referring to sub-regulation (2) thereof, it was pointed out that under the said provision, the Commissioner of Customs is empowered in appropriate cases where immediate action is necessary, to suspend the licence of a Customs House Agent, where an inquiry against such agent is pending or contemplated and that in the facts of the present case, the Commissioner of Customs was fully justified in suspending the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent had submitted fraudulent documents for the purpose of aiding the timber importers in filing the refund claims, nothing specific is stated anywhere either in the first order of suspension or in the second order confirming the earlier order of suspension. Inviting attention to paragraph 6.3 of the order dated 20-5-2010 it was pointed out that the only details given therein are the refund file numbers and the names of claimants without specifying as to in respect of which refund claims fraudulent documents had been submitted; the nature of the fraudulent documents submitted; the amounts of the claims sanctioned; and as to how the employee of the respondent had assisted the timber merchants and the amounts of refund sanctioned in respect thereof. It was submitted that insofar as the files which were found in the premises of the respondents are concerned, it is a routine practice for the employees of the CHA to bring the files to their office for documentation work like preparing/taking printouts of note-sheets, draft orders etc., with the full knowledge of the concerned officers of the Customs department. 9. Drawing the attention of the Court to the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms and had also colluded with the importer/claimants of refund claim, which has resulted in granting of huge refund amounts to the importers claimed on the basis of incorrect, improper and fraudulent documents. The other allegation is that seven files of the department pertaining to refund claims were found in the office of the respondent during the search operation carried out by the department. 12. On reading both the orders of suspension in their entirety, there is nothing to indicate the nature of the fraudulent documents submitted by the employee of the respondent on behalf of the importer or as to in respect of which refund claims such documents had been submitted. Except for a vague statement that refund claims have been sanctioned on the basis of fraudulent documents submitted by the importer with the help of the respondent CHA firm, there is nothing to indicate as to what is the nature of the fraudulent documents, nor are any details stated therein. There is no specific reference as to which are the refund claims that have been sanctioned as a result of submission of fraudulent documents. As regards the seven files which were found in the premises of the respondent CHA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Regulations, which provides for obligations of the CHA, lays down that a CHA shall advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. In respect of this allegation, there is nothing in either of the orders of suspension to indicate as to how the respondent has failed to comply with this provision, as to what was the non-compliance which was not brought to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, by the respondent firm. Neither is the learned counsel for the appellant, in a position to point out as to how the said provision has been contravened. In the circumstances, prima facie, there does not appear to be any material on record to substantiate the allegation of contravention of the provisions of clause (d) of regulation 13 of the Regulations. 14. Regulation 13(h) of the Regulations lays down that the CHA shall not procure or attempt to procure directly or indirectly, information from the Government records or other Government sources of any kind to which access is not granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to comply with any of the provisions of the regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else as contemplated in clause (b). Insofar as clause (c) is concerned, the misconduct alleged is that fraudulent documents have been submitted and that the files of the department have been taken to the premises of the CHA, which as noted hereinabove, prima facie have not been established by the department. In the circumstances, the appellant has not been able to establish any of the charges which have been levelled against the respondent CHA. The Tribunal was, therefore, justified in setting aside the order of suspension passed by the respondent Commissioner. 17. Another aspect of the matter which requires to be considered is that regulation 22 of the Regulations provides for the procedure for suspending or revoking licence under regulation 22. The said regulation provides for issuance of a notice by the Commissioner of Customs to the Customs House Agent, in writing, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said CHA to submit, within the period specified therein a written statement of defence e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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