TMI Blog2012 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... tics drugs by M/s. V.K. International, it came to fact that the said two G card holders were infact employees of M/s. V.K. International Pvt. Ltd., a freight forwarding company. Further investigations were conducted and statement of appellants representative were recorded. It stands established that Shri Naveen Mishra and Shri Jawed Kamal were not the employees of the proprietor and G card was procured by the appellant in their name by mis-representing as his own employees. He also received a consideration of Rs.15,000/- for obtaining said G cards from M/s. V.K. International. 3. In the above background, proceedings were initiated against the appellants by way of show cause notice dated 30.3.05 proposing to suspend their licence immediately in terms of Regulation 20(2) of the Custom House Agent Licence Regulation. The appellant vide his letter dated 1.4.2005, in reply to the show cause notice admitted that the said two G card holders were the employees of M/s. V.K. International. However, he submitted that they were not aware of the fact that M/s. V.K. International was engaged in exporting narcotics. They acted in a bonafide belief that the said M/s. V.K. International needs the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his submissions that at the most the appellants act can be said to be negligence per se but not culpable negligence. He submits that the Tribunal in the case of Sanco Trans Ltd. vs CC Bangalore reported as [1996 (83) ELT 557 (Tri)] has held that the difference between the negligence and culpable negligence has to be kept in mind and a mere admonition in such cases would meet the ends of justice when the appellants bonafide are not doubted. The appellants clean record of reputation for the last number of years, without any breach or contravention of any rules have to be kept in mind. Similarly, he draws our attention to the decision in the case of A.N. Bhat vs. CC reported as [1991 (55) ELT 580 (Tri)] in support of his plea that the licence stand cancelled for the last 6 years which should be considered to be a sufficient punishment for the negligence on the part of the appellants. He submits that the punishment should be commensurate with the offence and the appellant as an old person having no expertise in any other line and have been out of job for the last 6 years and has been at the brink of starvation. The cancellation of licence deprived him from his means of livel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... job for the last 6 years, we set aside the impugned order of suspension of his licence and restore the licence subject to the condition that any fraud of CHA Regulation in future would be viewed strictly by the officers and may result in forfeitation of his licence forever. 9. The appeal is disposed of in above terms. (Pronounced in the open Court on 17.1.2012) Separate orders 10. I have gone through the case records and the order recorded by Ld. Member (Judicial) and since I am not agreeing with the order I am recording this separate order. 11. The facts have been recorded by Ld. Member (Judicial). The question to be considered is whether the act committed by the Appellant as a Custom House Agent, is serious enough to warrant cancellation of his license as a Customs House Agent or whether it is not so grave in nature. The second issue to be decided is whether keeping the appellant out of his job for more than six years as a Customs House Agent is a good enough punishment and whether the cancelled license can be restored now for that reason. 12. The misconduct on the part of the appellant is that he helped two persons to get G card as per provisions of Regulation 3 (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even before the cancellation of his license he was seeking rental income from his license. When the appellant engages his employees against payment of money instead of paying the employee, the intention is clear. A message is sent that the so called employee is given an opportunity to do whatever he wants using the identity card to earn his livelihood. Now after a break of six years, when he has to restart his business, the risk of such behavior is higher and I am of the view that this is not a fit case where license can be restored. 15. The theory that keeping the person out of his activities for about six years is a sufficient punishment is not a correct argument because there is no such law in the matter. Depending on the facts of a particular case, Tribunal has decided so in some cases. But that cannot be a general rule. In this matter the Commissioner of Customs should be a best judge as decided by the Andhra Pradesh High Court in the case of CCE Vs HB Cargo Services reported in 2011 (268) ELT 448 (A.P.) and is not a fit case for the Tribunal to interfere with the decision. So I am of the view that there is no reason to restore the license of the Appellant. (Mathew J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Customs, vide order dated 21-4-2005 issued under Regulation 20(2) of the CHALR 2004 suspended the appellant s licence. Subsequently on completion of inquiry and after following procedure prescribed in Regulation 22(1) to 22(7), the Commissioner vide order-in-original dated 8-8-2007 revoked the CHA licence of the appellant under Regulation 20(1) of CHALR, 2004 and ordered forfeiture of the security of Rs. 50,000/-. Against Commissioner s order dated 8-8-2007 revoking the appellant s CHA licence, this appeal has been filed under Regulation 22(8) of the CHALR 2004. The above appeal was heard by the Bench consisting of Ms. Archana Wadhwa, Member (Judicial) and Shri Mathew John, Member (Technical). The Hon ble Member (Judicial) in her order dated 2-12-2011 ordered for setting aside the impugned order of suspension of the Appellant s licence and restoration of the licence, subject to condition that any fraud by the Appellant in future would be viewed strictly by the officers and may result in forfeiture of his licence forever. The decision of the Member (Judicial) is based mainly on the consideration that the Appellant s CHA licence is under suspension for the last 6 years which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national, are not denied and that this conduct of the appellant amounts to subletting of CHA licence for monetary consideration and is a misconduct and contravention of CHALR 2004 is also not denied. He, however, pleaded that the appellant was not aware of the illegal activities of Shri N. Mishra and Shri Jawed Kamal, that the appellant s licence has been under suspension for about six years, which is sufficient punishment for his mis-conduct, that taking this factor into account, the Member (Judicial) has correctly ordered for restoration of his licence, that for such a mis-conduct, the livelihood of the Appellant cannot be snatched away from him permanently, that revocation of a licence for some mis-conduct cannot be permanent suspension of the licence and that has to be for only some definite period, that looking to the nature of misconduct suspension of the licence for six years is sufficient, and that in this regard he relies upon the judgments of - (a) Hon ble Bombay High Court judgment in the case of Commissioner of Customs v. KMG Co. reported in 2010 (254) E.L.T. 454 (Bombay) by which the Hon ble High Court has upheld the judgment of the Tribunal, by which the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that M/s. V.K. International and his employees, Shri Naveen Mishra and Shri Jawed Kamal were involved in serious offence of narcotics smuggling, that just because of statement of the appellant that he was not aware of the illegal activities of Shri Naveen Mishra and Shri Jawed Kamal, it does not mean that he was not aware of the activities of Shri Naveen Mishra and Shri Jawed Kamal, that a CHA before applying to the Customs Authorities for issue of G-Card to his employees has to exercise due diligence to ensure that they are not involved in any illegal activities, that in this case that the appellant not only got G-Card issued in the name of two persons, who were not his employees but were the employees, of M/s. V.K. International, for this, he was accepting monetary consideration of Rs. 15,000/- p.m. which has not been denied, that such mis-conduct of the CHA is of a very serious nature in the background of the fact that Shri Mishra and Shri Jawed Kamal were involved in narcotics smuggling and were misusing their access to the customs area for this illegal activity, that such miscounduct cannot be condoned and hence, the licence has been correctly revoked, that there is no power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of CHALR 2004. On the account of the above mis-conduct, the licence of the appellant was revoked by the Commissioner vide order dated 8-8-2007 under Regulation 20(1) of CHALR 2004. There is no dispute that this revocation order was preceded by suspension of his licence since 21-4-2005 by an order passed under Regulation 20(2) of CHALR, 2004. The present appeal is against the Commissioner s order dated 8-8-2007 revoking the CHA licence. The point of dispute is as to whether in the facts and circumstances of the case, the CHA licence granted under Regulation-8 of the CHALR, 2004 is to be restored or not. 25. Appeal to the Tribunal against the Commissioner s order passed under Regulation 20(1) regarding revocation of the licence of a CHA and order passed under Regulation 20(2) regarding immediate suspension of the licence is as per the provisions of Regulation 22(8). On going through the various provisions of the CHALR-2004, I am of the view that the Tribunal while hearing an appeal against the Commissioner s order revoking the licence of a CHA, has to confine itself only to the correctness or otherwise of the order and is required to give its decision only on this point. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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