TMI Blog2014 (2) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... The statement of Shri Vishal Madan cannot be relied upon at this stage. Further, the fact that the appellant has filed an application for inclusion of the names of Shri Surendra Pandey and Shri Nagendra Pandey as Directors and police verification has been conducted has not been denied. Therefore, the order of suspension of the CHA Licence No. 11/273 under Regulation 20(2) is not sustainable and accordingly the same itself is set aside - respondent is directed to revoke the suspension of CHA Licence - Decided in favour of appellant. - C/85091/2013-Mum - Final Order No. A/94/2013-WZB/C-I(CSTB) - Dated:- 20-2-2013 - Shri Ashok Jindal and S.K. Gaule, JJ. Shri C. Harishankar, Advocate, for the Appellant. Shri B.S. Meena, Additional Commissioner (AR), for the Respondent. ORDER The appellant is in appeal against the impugned order dated 7-12-2012 (issued on 10-12-2012) wherein their CHA Licence No. 11/273 was suspended under Regulation 20 of the Customs House Agents Licensing Regulations, 2004. 2. The brief facts of the case are that as per the impugned order, an investigation report dated 5-11-2012 from the DRI was received with enclosures on 7-11-2012, vide which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Shri Surendra Kumar Pandey was using the CHA licence of M/s. Unison Clearing Pvt. Ltd. for clearance purpose since change of directors/constitution of the said company; that Shri Surendra Kumar Pandey and Shri Nagendra Pandey were not having Customs passes; that the office premises was functioning under the control of Surendra Pandey and Nagendra Pandey; that two persons named Shri Devendra Singh and Shri Sanjay Kumar were the employees of the CHA company and were having Customs passes; that these two employees were working under the control of Surendra Pandey and Nagendra Pandey; that Surendra Kumar Pandey and Nagendra Pandey were raising CHA bills in the name of M/s. Suprabha Logistics. 2.2 Statement of Shri Vishal Madan was recorded under Section 108 of the Customs Act on 9-10-2012 in which he admitted the complicity of Surendra Kumar Pandey in misdeclaration of the value of artificial leather cloth imported by him. From the foregoing, it appears that M/s. Unison Clearing Pvt. Ltd. by the aforesaid acts of commission or omission has prima facie failed in the discharge of their obligation under the following provisions of CHALR, 2004. Regulations 12, 13(b), 13(d), 13(e), 13(n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendra Kumar Pandey, using the CHA license of the appellant. This is incorrect. It was pointed out, by the appellant, in its W/S dated 29-11-2012 that the Bs/E in question were being filed on on-line basis, from the office of the appellant, by the director qualified in authorised to do so, and not by Surinder Kumar Pandey. (ii) Para 4 of the impugned order states that, as Surendra Kumar Pandey did not report to the DRI office, the DRI, vide letter dated 11-10-2012, addressed to the Chief Commissioner of Customs, requested that the Bs/E in question be suspended. This, too, is an inaccurate statement. In fact, (a) the 1st summons, to Surrender Kumar Pandey, were issued only on 15-10-2012, summoning him to appear, before the DRI, on 16-10-2012, (b) Shri Surendra Kumar Pandey, on receiving the said summons, requested that he be permitted to appear in the presence of an advocate, at a visible, though not audible, distance, (c) on this request not being acceded to, Shri Surendra Kumar Pandey move the Hon ble Bombay High Court, by way of WP 10120/2012, (d) the said WP 10120/2012 was allowed, by the Hon ble High Court, on the very 1st day, i.e. 1-11-2012, by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagendra Kumar Pandey. All these facts find no mention in the impugned order. (v) Para 6 of the impugned order, dated 7-12-2012, relies on the statement of Shri Vishal Madan. However, the impugned Order does not mention the fact that Shri Vishal Madan had himself, in a Writ Petition filed before the Hon ble Bombay High Court, deposed, on oath, that his statement had been recorded under coercion and that the contents thereof were neither true nor voluntary. As such, this statement, too, could not have been relied upon, to justify suspension of the appellant s CHA license. He also placed on record the copy of WP No. 3951 of 2012 filed before the Hon ble High Court of Bombay by Shri Vishal Madan. Moreover, his statement is not corroborated with actual physical examination of seized containers, released on provisional basis by the Respondent Commissioner. (vi) Most astonishingly, the impugned order dated 7-12-2012 further alleges, in para 7, that the appellant was a habitual offender, as it had earlier also been found to be involved in a case of alleged forgery of signatures of officers by its employees, on the basis whereof, it is stated that the following action was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectfully submitted that the suspension of the appellants CHA license and, in any case, the invocation, against the appellant, of the emergency provision contained in Regulation 20(2) of the CHALR, is entirely unjustifiable. 5. Without going into them seriatim, it becomes apparent, from the above facts, that none of the Regulations alleged, in para 6 of the impugned Order, to have been infracted by the appellant had, in fact, been so infracted. 6. In fact, the present case is, essentially, one in which, though it is alleged that the imported goods had been undervalued by the companies of Shri Vishal Madan, there is nothing, barring the retracted statement of Shri Vishal Madan itself, to indicate that the appellant was ever aware of the said alleged undervaluation. As the appellant contended, before the learned Commissioner, the CHA played no role insofar as valuation of the imported goods was concerned, which was solely the province of the Customs authorities. The imported goods had been cleared by the appellant, through two persons who held Customs passes and were, therefore, authorised to do so. There is nothing to indicate that the appellant was privy thereto or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for invocation, against the appellant, of the emergency provision contained in Regulation 20(2) of the CHALR, could be said to exist. Reliance is respectfully placed, in this context, on the judgment, of the Hon ble Delhi High Court, in Falcon Air Cargo and Travels (P) Ltd. v. U.O.I., 2002 (140) E.L.T. 8 (Del.) : Though we have not dealt with the question of proportionality, it is to be noted that the authorities while dealing with the consequences of any action which may give rise to action for suspension, revocation or non-renewal have to keep several aspects in mind. Primarily, the effect of the action vis-a-vis right to carry on trade or profession in the background of Article 19(1)(g) of the Constitution has to be noted. It has also to be borne in mind that the proportionality question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death. (Emphasis supplied) 10. De hors and without prejudice to the submissions contained hereinabove on merits, it is further submitted that the impugned order also deserves to be set aside for transgressing beyond the statutory time limits stipulated in Regulation 20(2) and (3) of the CHALR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Customs, Zone-I II, requesting to suspend bills of entry filed by the said CHA company. In this regard, it is submitted by him that the time limit of 15 days starts from the receipt of the offence report from the investigating agency as per Regulation 20(2). In this case, the offence report was received only on 5-11-2012 and on 7-11-2012 with enclosures from the DRI, therefore the immediate suspension order was passed on 15-11-2012 is well within time. He further submitted that the appellant s contention that there was no complicity of Shri Surendra Pandey, director of the CHA company, regarding the misdeclaration of the value of artificial cloth imported by Shri Vishal Madan. It is submitted that Shri Vishal Madan, in his statement recorded on 9-10-2012 under Section 108 of the Customs Act, has himself admitted the complicity of Shri Surendra Pandey and he was paying Rs. 50,000/- for 40 feet container and Rs. 25,000/- for a 20 feet container in cash over and above the Customs duty. The CHA commission and other clearing charges were paid in demand drafts. Therefore, it is prima facie a clear indicator of the unauthorized use of the CHA licence for monetary consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H), (2) CCE, Hyderabad-II v. H.B. Cargo Services - 2011 (268) E.L.T. 448 (A.P.), (3) Kamakshi Agency v. CC, Madras - 2001 (129) E.L.T. 29 (Mad.) and (4) CC(G) v. Worldwide Cargo Movers - 2010 (253) E.L.T. 190 (Bom.). 6. Heard both sides and considered their submissions in detail. 7. We find that the action of the adjudicating authority in invoking Regulation 20(2) of the CHALR for immediate suspension of the CHA licence is on the basis of the following grounds :- (a) The appellant is a habitual offender. (b) On the basis of the statement of Shri Vishal Madan, recorded by the DRI. (c) The names of Shri Surendra Pandey and Shri Nagendra Pandey were not entered in the records of the department as Directors of the CHA firm. 8. It is the contention of the appellant that bills of entry in question were being filed on online basis from the office of the appellant by the Director qualified in authorized to do so and not by Shri Surendra Pandey. As it is a matter of record, therefore that fact cannot be denied. Further, the first summons to Shri Surendra Pandey was issued only on 15-10-2012 summoning him to appear before the DRI on 16-10-2012 against the said order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorrect as the said order of revocation of licence of the CHA on 18-8-2006 was set aside by this Tribunal and the same was upheld by the Hon ble High Court of Bombay vide order dated 8-2-2012. 9. In the impugned order, the adjudicating authority has also relied on the statement of Shri Vishal Madan, recorded under Section 108 of the Customs Act, 1962. The said statement has been retracted by Shri Vishal Madan himself in writ petition filed before the Hon ble High Court of Bombay and deposed that his statement was recorded under coercion and the contents thereof were neither true nor voluntary and the said petition is pending before the Hon ble Bombay High Court. 10. We have examined the case and on examination we find that the statement of Shri Vishal Madan has been retracted before the Hon ble High Court of Bombay and, therefore, the statement of Shri Vishal Madan cannot be relied upon as the investigation is still going on. We further find that the allegation that the appellant is a habitual offender, on the basis of the order of revocation of their CHA licence on 18-8-2006 has already been set aside by this Tribunal and the same has been confirmed by the Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death. (Emphasis supplied). 14. We are not convinced by the arguments of the learned counsel that the impugned order has not been filed within 15 days as prescribed in Regulation 20(2), as the offence report was received by the Commissioner on 5-11-2012 and the order of suspension was passed on 15-11-2012. Therefore, the same is within time. 15. But from the above discussion, we find that the investigation is going on and the grounds on which the licence has been suspended are not sustainable as the appellant is neither a habitual offender. The statement of Shri Vishal Madan cannot be relied upon at this stage. Further, the fact that the appellant has filed an application for inclusion of the names of Shri Surendra Pandey and Shri Nagendra Pandey as Directors and police verification has been conducted has not been denied. Therefore, the order of suspension of the CHA Licence No. 11/273 under Regulation 20(2) is not sustainable and accordingly the same itself is set aside. However, the respondent is at liberty to proceed with the case under Regulation 22 of the CHALR in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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