TMI Blog2012 (12) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... he CHA licence is justified - C/635/2010 - A/16/2012-WZB/C-I(CSTB) - Dated:- 11-1-2012 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri N.D. George, Advocate, for the Appellant. Shri Navneet, Addl. Commissioner, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. This appeal is directed against the order-in-original No. 48/2010/CAC/CC(G)/SLM/CHA (Admin), dated 9-6-2010 passed by the Commissioner of Customs (General), New Customs House, Mumbai vide the impugned order, the ld. Commissioner revoked the CHA licence No. 11/231 issued to the appellant, M/s. Santon Shipping Services, Mumbai. 2. The facts arising for consideration in this case are as follows :- 2.1 A show cause notice dated 31-7-2008 was issued to Santon Shipping Services alleging involvement in the fraudulent export by M/s. Shradha Exim Pvt. Ltd., (SSEPL in short) under DEPB and DEEC schemes. The exporter SSEPL procured pharmaceutical goods viz., Amoxycillin Trihydrate and Cefadroxil from M/s. Surya Pharmaceutical Ltd., (SPL in short) for third party exports against SPL s DEEC licences. The said goods instead of gong to Nhava Sheva Port for export were dive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. PMLU 2038951 covered by 14 Bills of Lading issued by M/s. Vini Container Lines Pvt. Ltd., Mumbai and in container No. FSCU 7693713 covered by 24 Bills of Lading issued by M/s. Seasky Cargo Travels Pvt. Ltd., and he did not deal either with M/s. Vini Container Lines Pvt. Ltd., or M/s. Seasky Cargo Travels Pvt. Ltd., in relation to the above exports. 2.4 Statement of Shri Bose J. Fernando, partner of M/s. Santon Shipping Services was recorded on 29-7-2008 wherein he admitted, inter alia, that the export clearance was brought to him by Shri V.P. Nair and Shri Nair had introduced him to one Shri Krishna Kumar Pillai of M/s. Airose Shipping Pvt. Ltd., and he had not met any person of the said exporter nor had he ever visited their office nor had he any negotiated any clearance charges/modalities with SSEPL. When Shri Nair approached him with said proposal, he had reached an understanding with him for allowing usage of his licence for fixed charges irrespective of the nature and value of consignment. As per the understanding, Shri Nair was required to look after all clearances related work while he was required to get the signature of authorised person in the documents against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department thereby illegally obtaining a customs pass in the name of Shri V.P. Nair. The 4th and 5th charges relate to violation of Regulations 13(d) and 13(n) of the CHALR, 2004 inasmuch as the CHA failed to advise his client of the provisions of Customs Act and did not discharge his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay. 2.8 An inquiry was conducted in accordance with provisions of CHALR, 2004 and the inquiry officer held that the CHA has violated the provisions of Regulations 12, 13(a) and 13(b) of the CHALR, 2004. After completion of inquiry and presentation of the reports, the case was adjudicated by the Commissioner of Customs, who based on the inquiry officer s report held that the CHA had violated the Regulations 12, 13(a) and 13(b) of the CHALR, 2004 and accordingly revoked the CHA licence of Santon Shipping Services. Hence, the appellants are before us. 3. As regards the first charge, the ld. Advocate for the appellant submits that Shri V.P. Nair was an employee of the CHA firm and when the employees of CHA use the licence for clearance of goods, it cannot be said that the licence was sold/sub-let by CHA in viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent production of attendance register and salary register are fabricated documents and no reliance can be placed on the same as rightly observed by the adjudicating authority. Therefore, he submits that the allegation that he has transferred the licence to another person Shri Nair is substantiated and the violation of Regulation 12 is established. 4.1 The ld. AR further submits that it is on record that the appellant did not know the exporter nor did he obtain any authorization from him. Therefore, violation of Regulation 13(a) is also clearly established. Inasmuch as Shri Nair is not an employee of the appellant, the CHA could not have utilized his services by getting a Customs pass in his name and, therefore, violation of Regulation 13(b) is also established. 4.2 The AR relies on the judgment of the Hon ble Andhra Pradesh High Court in the case of Commissioner of Customs, Hyderabad-II v. H.B. Cargo Services reported in 2011 (268) E.L.T. 448 (A.P.) and the decision of the Hon ble High Court of Delhi in the case of Jasjeet Singh Marwaha v. UOI reported in 2009 (239) E.L.T. 407 (Del.) in support of his contention. 5. We have carefully considered the rival submission. 6. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the investigation which itself shows that the entire evidence has been cooked up. Therefore, the Commissioner s finding that the CHA allowed his licence to be utilised by a third party in violation of Regulation 12 of the CHALR, 2004 stands clearly established and cannot be faulted. As regards the second allegation that the CHA did not obtain the authorization from the exporter, this is an admitted position. Both Shri Nair as well as Shri Fernando have clearly admitted that they did not know anybody from the exporter s firm and the business was given to them by Shri Krishna Kumar of Airose Shipping Pvt. Ltd., Mumbai. Therefore, violation of Regulation 13(a) of CHALR, 2004 is also established. Inasmuch as Shri Nair was not an employee, the CHA could not have availed his services for undertaking the customs work. In the instant case the CHA fraudulently obtained a customs pass in Shri Nair s name by declaring him as an employee. Therefore, he has clearly contravened the provisions of Regulation 13(b) of CHALR, 2004. 6.1 As regards the reliance placed by the Advocate for the appellant in the case of Sainath Clearing Agency, in that case it was held that the CHA cannot be held li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-obtaining of the authorization, the charge is one of the subletting the licence for use by a third party for a consideration. Therefore, the ratio of the said judgment does not apply to the facts of the case. 6.4 On the other hand, we find that in the case of H.B. Cargo Services, the Hon ble Andhra Pradesh High Court held that issuance of signed blank shipping bills amount to negligence and by dong so for a consideration, it was an act of corruption and, therefore, the CHA was liable to maximum penalty of revocation of licence. The court further held that the quantum of consideration received for the misconduct is irrelevant. In the instant case the CHA sublet his licence for a consideration in gross violation of Regulation 12 of CHALR, 2004 and this is an act of corruption. The Hon ble High Court further held that in the Customs area, the Commissioner of Customs is responsible for the happenings, the discipline to be maintained there and he is best placed to understand the importance of CHA and if he takes a decision necessary for that purpose, the Tribunal should not ordinarily interfere on the basis of its own notions of difficulties likely to be faced by CHA or their emp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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