TMI Blog2012 (12) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... asekharan, Shri Sahab Singh, JJ. REPRESENTED BY : Shri Anil Balani, Advocate, for the Appellant. Shri V.K. Singh, SDR, for the Respondent. [Order per : Ashok Jindal, Member (J)]. - The appellants were granted regular CHA licence under the provisions of Custom House Agent Licensing Regulations, 2004 (CHALR in short) as amended. 2. A case of abuse of CHA licence was reported by the Commissioner of Customs, (SIIB Exports) as the said CHA firm was allegedly involved in drawback scheme by misdeclaration or overvaluation of exported goods in violation of CHALR, 2004 for alleged violation of these regulations. The charges were as per articles of charges are : (a) CHA was not having proper authorisation in violation to Regulation 13A of the CHALR, 2004. (b) The CHA did not advice the exporter/client correctly the provisions of the Act in violation to Regulation 13(d) of CHALR, 2004. The enquiry officer filed the report holding that the charges has been established against the appellant and thereafter proceedings were undertaken before the Commissioner of Customs (Gen), Mumbai. On the basis of charge made out in the enquiry report, the ld. Commissioner agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ld. AR for the department contended that the charges against the appellants are that they are not having proper authorisation which is in violation of Regulation 13(1) and they have not properly advised to their client for violation of Regulation 13(4). It is on record that the appellant did not have proper authorisation from the exporter, M/s. Balaji Traders and they have not properly advised the exporter and the charges which are admitted need not be proved under Regulation 22(3). Merely not recording the statement by the enquiry officer does not vitiate the proceedings and when the statement itself shows that there was violation of Regulation 13(a) and 13(d). Therefore, no cross objection is required under Regulation 22(4) of the Regulation. The revocation of CHA licence is to be considered by Commissioner of Customs who is responsible for happening in the customs area and discipline to be maintained there and in this case admittedly there is violation of regulations; therefore impugned order is to be upheld as held by this Tribunal and the Hon ble High Court of Bombay in CC v. Worldwide Cargo Movers - 2010 (253) E.L.T. 190 and OTA Kandla P. Ltd v. UOI - 2011 (269) E.L.T. 457 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and CHA had put their defence in the enquiry proceedings. But in the case in hand, it is admitted fact that no proper opportunity was given to the appellants to put their defence before the enquiry officer and the enquiry officer has not conducted enquiry as per Regulation 22(3) and (4) of the CHALR, 2004. As the charges against the appellant are so grave and enquiry was not conducted in proper manner, the harsh punishment has been given to the appellant by revoking their CHA licence which put the appellant out of business for almost three years. The punishment is harsh as held by the Tribunal in Falcon Air Cargo (supra). Therefore relying on the decision of Thakkar Shipping Agency (supra), Falcon Air Cargo (supra) we hold that the impugned order of revoking of CHA licence is bad in law and the punishment already suffered by the appellant is sufficient. Accordingly, we allow the appeal and set aside the impugned order with consequential relief. (Pronounced in Court on ) Sd/- (Ashok Jindal) Member (Judicial) 8. [Per : P.R. Chandrasekharan, Member (T)]. - I have carefully gone through the order recorded by my learned brother Member (Judicial). Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a shipping agent. No letter of authorization was also obtained from the exporter to undertake the work. An argument has been put forth by the CHA that he has seen the IEC code issued to the exporter and accepted the same to be genuine. IEC code issued by the DGFT is not an authorization as envisaged under the CHALR for undertaking work on behalf of the exporter. In the instant case, in the adjudication order dated 26-12-2003 in respect of the proceedings under the Customs Act, it has been found that on the summons issued to the exporter during the investigation or after the issue of show cause notice, none appeared on behalf of the exporter. Further, all the letters addressed to the exporter in the address given in the IEC code came back undelivered and the exporter appeared to be a fictitious entity. The transaction in the instant case is one of exports involving claim for duty drawback to the extent of Rs. 12,03,024/-. Therefore, the CHA should have obtained a proper authorisation from the exporter to act on his behalf, which has not been done in the instant case. Merely on the recommendation of Shri S.K. Maheshwari, who is the proprietor of M/s. Hindustan Shipping, the CHA cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment already suffered by the appellant is sufficient as the CHA has been out of business for almost three years since the suspension of his licence. When it is established that the CHA has violated the provisions of CHALR, as discussed above, the CHA has to be punished for his mis-conduct. It should be remembered that the CHA licence is not a licence to commit or abet commission of frauds. It is a privilege given to a person to conduct the business of a CHA in accordance with law and to assist the Customs in ensuring compliance to the provisions of Customs and allied laws. Thus the CHA plays a very important role in ensuring compliance of law. 10.5 The Hon ble High Court of Andhra Pradesh in Commissioner of Customs, Hyderabad-II v. H.B. Cargo Services reported in 2011 (268) E.L.T. 448 (A.P.) held as follows : 16. While great emphasis is placed by Sri C. Kodandaram, Learned Senior Counsel appearing on behalf of the respondent, on the previous unblemished record of the CHA, it must be borne in mind that a single act of corruption is sufficient to award the maximum penalty which, under the CHALR, is of revocation of the license. (State of Punjab v. Ex-Constable Ram Singh - (1992) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 2010 (253) E.L.T. 190 (Bom.) held as follows : 28. 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 improper 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 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 to be left to the disciplinary authority save in exceptional cases where it is shockingly disproportionate or mala fide. That is not the case here. 10.7 In the light of the decisions of the Hon ble High Courts (supra) I am of the view that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Regulation 22(3) and 22(4) of CHALR, 2004 or not and whether the revocation of CHA licence is sustainable and whether the punishment suffered by the appellant is sufficient in the facts and circumstances of the case. 17. The learned Advocate appearing on behalf of the appellant submitted that the exports were effected in the year 1999 whereas the enquiry proceedings under Regulation 22 of the CHALR, 2004 were initiated in the year 2006. There is no explanation for inordinate delay of 7 years by the department. He also submitted that enquiry was not properly held by the enquiry officer as required under Regulation 22 of the CHALR. As per the charge-sheet issued to the appellant there is a list of documents as well as the list of witness. In this case neither any witness was called for examination nor the appellant was allowed any cross-examination therefore the impugned order is bad in law. He also submitted that there is a clear violation of natural justice as the impugned order has been passed without giving an opportunity to the appellant for cross-examination of the witnesses. He contended that the conclusion of the inquiry report is wrong and very harsh punishment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri as well as Shri Bhimsen Singh under the Customs Act for violation of provisions of Customs Act in the Appeal Nos. C/277 194/2004 and the Tribunal on 2-3-2012 dismissed their appeal though the penalty imposed in the order-in-original was reduced by the Tribunal. Once, the offence committed by the appellant stands confirmed by the Tribunal there is no reason for the appellant to find fault in the order passed by the Commissioner regarding the revocation of their licence. He also relied upon the following case laws in support of his contention. (1) Jasjeet Singh Marwaha v. Union of India - 2009 (239) E.L.T. 407 (Del.) (2) Commissioner of Cus. C. Ex., Hyderabad-II v. H.B. Cargo Services - 2011 (268) E.L.T. 448 (A.P.) (3) Commissioner of Customs (General) v. Worldwide Cargo Movers - 2010 (253) E.L.T. 190 (Bom.) (4) Shree Venkatesh Shipping Services P. Ltd. v. C.C.(G), Mumbai-I - 2010 (261) E.L.T. 880 (Tri.-Mumbai). 19. After hearing both the sides, I find that first point to be decided is whether the enquiry officer has conducted the enquiry as per the Regulation 22 of the CHALR. From the records of the case it is seen a personal hearing was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desh and the Hon ble High Court of Bombay in case of Commissioner of Customs, Hyderabad-II v. H.B. Cargo Services (supra) and Commissioner of Customs (General) v. Worldwide Cargo Movers (supra) and ratio of these decisions were discussed by learned Member (Technical) in paras 10.5 10.6 of the order. In both these judgments by the High Courts the revocation of licence of the CHA was upheld by the courts. Moreover this is also a fact that the appellant s appeal filed under the Customs Act against the imposition of penalty has been dismissed by this Tribunal on 2-3-2012 which proves that violation of the provisions of the Customs Act has been established against the appellant. Therefore, in the light of the decision of the Hon ble High Court s as well as rejection of their appeal by the Tribunal under the Customs Act, the revocation of the CHA licence by the Commissioner of Customs is sustainable. 22. In view of the above, I am, therefore, in agreement with the views taken by the learned Member (Technical), Shri P.R. Chandrasekharan. The reference is accordingly answered. 23. The appeal papers are sent back to the referral Bench for passing appropriate orders. (Pronounced in c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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