TMI Blog2012 (8) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued under the Customs Act - Thus more than 6 months had elapsed between the deposition of the statement and the retraction. It is a well settled legal position that such belated retraction has no sanctity in the eyes of law and has to be treated as pure afterthought - the case against the appellant is built on the statements recorded from their own. When the cargo was LCL, the CHA directed the shipping line to book it as FCL and also collected FCL charges form the exporter as a consideration for their help and support in committing the fraud. Further in his statement has admitted that he had not obtained copies of the transport document from the transporter/trucker who brought in the export goods for examination and stuffing. Therefore, violation of regulation 13(k) is also established - As it is not a case of minor infractions of the provisions of CHALR but a major active involvement in aiding and abetting fraudulent exports leading to substantial loss of revenue to the exchequer the maximum punishment prescribed in the CHALR is clearly attracted - aginst assessee. - C/762/11 - A/410/2012/CSTB/C-I - Dated:- 18-6-2012 - Ashok Jindal, P R Chandrasekharan, JJ. For Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so collected FCL charges for all these consignments from the exporters for extending their support and co-operation in fraudulent exports by mis-declaration of both weight and value. 2.3 On completion of the investigation by the DRL inquiry proceedings were initiated against the CHA and the following charges were imputed, namely, violation of- (1) Regulation 13 (d) of Custom House Agents Licensing regulations, 2004 (CHALR, in short), for failure to advise the client to comply with the provisions of the Customs Act and in case of non-compliance by the client, bringing the same to the notice of the Customs Authorities; (2) Regulation 13(a) for not obtaining authorization from the exporter for each of the transactions form their clients; (3) Regulation 19(8) for failure to exercise necessary supervision to ensure proper conduct of the employees; (4) Regulation 13(k) for non-maintenance of records and accounts in respect of the fraudulent exports; and (5) Regulation 13(n) for not discharging the duties with utmost speed and efficiency. 2.4 On completion of the inquiry, the Inquiry Officer held the charges as proved on the basis of the statements recorded by the DRI unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CHA firm was never in the knowledge; (l) The appellant enjoys an excellent reputation and has been holding the CHA licence for the last 51 years and had not come to adverse notice of the department; (m) The punishment accorded is quite harsh and not commensurate with the gravity of the offence and relies on the judgments of this Tribunal in the following cases, namely- (i) Vipul Pranlal Doshi [2012 (279) ELT 427] (ii) Adarsh Clearing Agency [Order No. A/547 to 549/2011/CSTB/C.I dated 28-11-2011] On the basis of the above submissions, he pleads for setting aside the impugned order and restoring the CHA licence of the appellant. 4. The Ld. Superintendent (AR) appearing for the revenue strongly opposes the plea and argues that the charges against the appellant are very grave. The Partner and the employees of the appellant firm had categorically admitted their involvement in the fraudulent exports, in their statements recorded under section 108 of the Customs Act. Belated retraction is only an afterthought. The Hon'ble High Court of Delhi has ruled that statements recorded under section 108 can be relied upon in the proceedings under CHALR. In a number of recent judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had brought this fact to the notice of Sri. Sudhakar More who instructed him to proceed with the work of getting the goods stuffed in the container. Similarly, Sri. A.V. Naik, Marketing Executive of M/s. Excel Worldwide Logistics, a Division of the appellant firm, in his statements dated 9-10-03 and 19-11-03 recorded under Section 108 of the Customs Act had admitted that Sri Kanse and Mr. Hardeep Gill of the M/s. Venus Maritime Services had brought to his notice the short shipment of goods and the said fact was brought to the notice the short shipment of goods and the said fact was brought to the notice of Sri Sudhakar More who did not give any direction and Sri Kanse informed him that More had instructed him to proceed with the goods. Sri Naik had also admitted that he had informed Shri. Hardeep that though the cargo was much less than that declared in Export documents, the cargo should be stuffed as FCL since Sr. More was collecting FCL charges in respect of all the export cargo. These statements had been corroborated by the statement of Mr. Hardeep Singh Gill, Marketing Executive of M/s Venus Maritime Services Pvt. Ltd. the shipping agents. Thus the entire export transactions we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. Therefore, the responsibility of he CHA is not over until the goods are examined and the Let Export Order is given and the goods are handed over to the shipping line for loading on to the vessel. 5.6 An argument has been put forth that since the imposition of penalty on the CHA has been stayed by this Tribunal, it shows prima facie case in favour of the appellant. We have perused the said order of this Tribunal. The stay has been granted only on the ground that both the CHA firm and partner need not be penalized for the same transaction and penalty on one of the m will suffice. This shows that there is no exoneration of the CHA in the customs case at all. 5.7 Since the Cha and his employees actively abetted and aided the fraudulent exports, the charge of violation of Regulation 13(d) and 13(n) stand clearly established. In this case, it is also worth noting that when the cargo was LCL, the CHA directed the shipping line to book i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Regulation 8 employee who gave a fake name of his brother as importer for undervaluing the imported car. Thus, the employee of the CHA was party to the Firm. The CHA has not disowned him in the reply filed by him before the appellant. That being so, he is clearly responsible vicariously. 18. In our view, the Tribunal has committed a grave error in interfering with the decision of a domestic authority. In a departmental proceeding one has to see whether the principles of natural justice are followed and the findings are justified from material on record. Once both these aspects are satisfied if an outsider Tribunal interferes, its findings and order will be imporoper and perverse which is what has happened in the present case. Similarly when one comes to the disciplinary measures, one must not lose sight of the fact that the appellant-Commissioner of Customs is responsible for the happenings in the Customs area and for the discipline to be maintained over there. If he takes a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or his employees. The decision is best t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EGAT has upheld the order of respondent no.2, revoking the licence of the petitioner as CHA on the ground of petitioner having committed breach of statutory regulations and the misconduct by misusing its licence. In the opinion of this Court, once the decision of the respondent Authorities that the petitioner committed violation of statutory regulations and the misconduct is found to be within the legal parameters, all the legal consequences as a result of such violation and the breach have to follow. The case of the petitioner being the case of contravention of said regulations and misuse of licence as CHA, the respondent Authorities have rightly revoked the licence of the petitioner. The said decision having been arrived at by the respondents, after taking into consideration all relevant material and the said Regulations, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational. Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality. The petitioner having failed to point out any pe ..... 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