TMI Blog2014 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... Adhia. appellant has not adduced any evidence to show that the statement of Shri Ketan Adhia, a partner of the CHA firm was not voluntary or was not truthful. If that be so, the appellant on first available opportunity would have retracted the statement. They have not done so - statement given by Shri Ketan Adhia has to be accepted as an admissible evidence and due weightage has to be given to the said statement - CHA cannot commit all kinds of violations in respect of export transactions and claim that no loss has been caused to the exchequer - exporting firm did not have a manufacturing license for undertaking the export of the said item from the Food and Drugs Administration. If that is so, the goods are prohibited goods for the purpose of export and by exporting such prohibited goods, the Foreign Trade Policy would get violated. If prohibited goods are allowed to be exported, it badly damages the reputation of the country as an exporter and such action would cause severe economic disadvantages to the nation. The proceedings under the Customs Act is for violation of the provisions of the Customs Act, while CHALR, 2004 deals with the conduct of the CHA. If there are serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-4-2008 under Section 108 of the Customs Act, 1962, wherein he admitted that when certain objection was raised by the Asst. Drugs Controller regarding the Drug Licence, he had informed Shri Sailesh Sawant, in-charge of Export Department of M/s. Calyx Chemicals Pharmaceuticals Ltd., about the same and Shri Sailesh Sawant, in turn, informed that the Company had applied for proper license and asked him to expedite the matter with the Asst. Drugs Controller to obtain a No Objection Certificate. He tried to obtain the No Objection Certificate from the Asst. Drugs Controller but was not successful. Therefore, he had himself put the initials of Shri DamIe on the invoices and submitted the documents along with the goods to the Customs for clearance of the goods for export. Shri Ketan Adhia in his further statements dated 7-4-2008 and 19-9-2008 recorded under Section 108 reiterated his earlier statement dated 4-4-2008. 2.1 Investigation conducted revealed that the exporter M/s. Calyx Chemicals Pharmaceuticals Ltd., had only a test licence (form 29) for Zoledronic Acid and they did not have any manufacturing licence issued by the Food and Drugs Administration and, therefore, they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that even if it is assumed that there has been forgery on the part of the partner of the CHA firm, since it is an export consignment, no revenue loss has been caused as export does not involve any payment of duty and therefore, revocation of license, which is an extreme and harsh punishment, should not have been meted out to the appellant. The learned Counsel further submits that the said items of export have been exported on previous occasions also and no objection has been raised by the customs. He further submits that the punishment should be commensurate with the gravity of the offence and in the instant case, it is only a minor technical infraction for which revocation is not warranted. He further submitted that in the customs proceeding in their own case, the penalty imposed on the CHA by the lower authority has been set aside by this Tribunal vide Order Nos. A/591 to 595/2010/SMB/C-IV, dated 29-9-2010 [2011 (264) E.L.T. 269 (Tri.)]. He also relies on a number of decisions, namely : 1. Falcon Air Cargo Travel (P) Ltd. - 2002 (141) E.L.T. 284 (T); 2. Trans Shipping Service - 2004 (163) E.L.T. 484 (T); 3. Smita International - 2004 (167) E.L.T. 219 (T); 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not examined by the prosecution or his statements were not obtained has no merit at all and has to be rejected out-right. 5.3 The Hon ble Delhi High Court in the case of Jasjeet Singh Marwaha v. Union of India - 2009 (239) E.L.T. 407 (Del.) held that a statement recorded under Section 108 of the Customs Act, 1962, can be relied upon in the proceedings under CHALR, 2004 if the same is voluntary and truthful and is not as a result of threat or inducement. In the case before us, the appellant has not adduced any evidence to show that the statement of Shri Ketan Adhia, a partner of the CHA firm was not voluntary or was not truthful. If that be so, the appellant on first available opportunity would have retracted the statement. They have not done so. Therefore, following the ratio of the Hon ble Delhi High Court judgment in the above cited case, the statement given by Shri Ketan Adhia has to be accepted as an admissible evidence and due weightage has to be given to the said statement and we hold accordingly. 5.4 The next issue relates to the punishment with respect to the offence committed. The appellant s case is that the transaction being an export transaction, there is no dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in mind. While Tribunals constituted under the Customs Act, are required to ensure that the punishment imposed is commensurate to the proved acts of misconduct, the present case which not only involves negligence on the part of the CHA in issuing blank shipping bills, but also an act of corruption in receiving Rs. 150/- as consideration for each such blank shipping bill would necessitate imposition of the maximum punishment which, under the CHALR, is of revocation of the license of the CHA. Mere suspension of license, in the facts of the present case, would be wholly unjustified. Ordinarily, matters of discipline lie in the realm of the competent authority i.e., the Commissioner of Customs who is best placed to understand the importance of the CHA in a customs area, and the trust and confidence reposed on him by the customs department. In an appeal, preferred against an order imposing punishment under the CHALR, the CESTAT should not be swayed by considerations of misplaced sympathy. Interference with the punishment imposed would be justified only when it shocks the conscience of the CESTAT. No indulgence can be shown to persons indulging in acts of corruption. The punishment impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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