TMI Blog2014 (5) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... Vipin Kumar did forging on his own and he did not know it - Even this claim has been found to be baseless and Commissioner made an observation that this was not a one off instance - These observations have not been contradicted by showing any evidence or making any submissions - In fact after the amendment of CHA Regulation in 2010, there is another regulation introduced which requires a CHA to verify who is the importer etc. - This is really not relevant and may not be proper for consideration since this was not the point which was taken into account by the Commissioner or in the earlier proceedings - This is another aspect which also goes against conduct of CHA - According to Regulation 13 the CHA is required to verify correctness of the IE code No - Therefore all the claims of the appellant go against him rather than in his favour – Relying upon CC v. Worldwide Cargo Movers [2006 (11) TMI 281 - BOMBAY HIGH COURT] – In view of Regulation 19(8), no merit is found in the appeal and is rejected – Decided against Assessee. - C/27462/2013-DB - Final Order No. 26951/2013 - Dated:- 31-10-2013 - SHRI B.S.V. MURTHY AND SHRI ANIL CHOUDHARY, JJ. For the Appellant : Mr. G. Subram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the appellant CHA handled the custom clearance of the goods, of an importer directly without the knowledge of the CHA. Importer had never met the CHA at any point of time during or after the clearance of the goods. Documents for clearance were handed over to the G Card Holder by the importer and G Card Holder prepared the check list signed the Bill of Entry by forging the signature of the CHA. Later Port Health Officer's certificate required for clearance of goods was also forged with the assistance of the 2 outsiders, whose ID Cards G H had also been fraudulently received by the G card Holder. The service charges and the duty amount to be paid to custom house was also received by the G Card Holder from the importer. This is evident from the statements recorded during the investigation of the case. These statements are available in Annexure K to Pin Paper Book., pages 44 to 69. CHA Anilkumar has been kept in dark about the clearance of the consignment by the G Card Holder. The statements are to the effect that G Card holder had been entrusted the import documents by importer who had also paid the service charges and duty amount for payment to customs by the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion again in para 20 of the order, showing his biased mind and predetermined fate of the appellant. The forging of documents by the G Card Holder came to light only during investigation by the SIB after clearance of goods. No one else knew about the same till then. Even the Custom Appraiser who gave the Out of charge to the Bill of Entry could not /did not detect the acts of forgery by the G Card Holder. When Show-Cause Notice was issued to the appellant for the revocation of the Licence after suspension, Commissioner based his charges for suspension of licence only on some selected statements recorded during investigation. Remaining statements recorded during investigation showing how the clearance documents were directly handed over to G card Holder of the CHA, and how the entire clearance work was solely handled by G card Holder to the exclusion of CHA were given to the appellant only when a second show-cause Notice was issued to him to the importer in connection with the confiscation of goods, imported and sized after clearance. Then only the appellant knew in full how he was taken for a ride by the G Card Holder who cleared the goods by himself without the knowledge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The CHA's work cannot be to perform policing procedure. Commissioners conclusion regarding vicarious responsibility is also not applicable in this case. There is enough evidence in this case, to prove that the clearance was done clandestinely without the knowledge of the CHA. In the case referred by the commissioner, 2003 (12) ELT 29, fraud was committed by the power of attorney holder using the blank forms signed by CHA. This case has no applicability to the case on hand. There can be no vicarious responsibility where the whole case is one fraud and cheating by the employee. This is a case where the CHA has been cheated by his employee who had cheated the custom officials also. The employee has masqueraded as CHA and cheated all concerned including customs. No charge of vicarious responsibility can be attributed in these circumstances. The impugned order is issued vitiating principles of natural justice, and total non-application of mind as evidenced by the facts. CHA is a young engineering graduate who has an unblemished carrier as CHA for the past over 26 years. The revocation of licence of such a person for an offence committed by his employee who had cheated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Vipin Kumar was able to obtain H card and G card for his associates Shri L. Kannan and Anil Kumar Alex respectively. He agrees that the Inquiry Officer in his statement states that because of these incidences which clearly show that there was total lack of supervision on the part of the appellant. Further she also relied upon the decision of the Hon ble High Court of Bombay in the case of CC, Vs. Worldwide Cargo Movers [2010 (253) E.L.T. 190 (Bom.)] wherein the Hon ble High Court in similar circumstances observed that revocation by the Commissioner was sustainable. 5. We have considered the submissions made by both the sides. The main defence of the appellant is that he was totally ignorant of the conduct/activities of Shri Vipin Kumar. He also did not know the importer and he also did not know that Shri Vipin Kumar had got G Card and H Card for two other persons by forging his signature. He also did not know that the importer was a friend of Shri Vipin Kumar. There is no evidence to show that he was involved in any manner with regard to the importation in this case and there is no evidence to show that he was engaged in improper imports. Further he also submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Vipin Kumar and bill of entry was filed without the knowledge of CHA. Moreover 2 copies of H cards and G cards were issued to 2 friends of Shri Vipin Kumar. It is not the case that appellant had no means to have proper control over the employees and even those steps have not been taken by the CHA in this case especially in view of the fact that he has 12 branches all over the country. When a person has 12 branches all over the country it is necessary for him to ensure that the employees all over the branches are supervised properly because day to day supervision may not be possible. Therefore the CHA has to necessarily recruit several employees and in this case unfortunately appellant is unable to explain either to Commissioner or to say what steps he had taken to ensure that his employees did not commit any fraud and also fulfill the obligations of CHA which are required to be fulfilled in terms of statute. His only claim before the original authority as well as before us is that Shri Vipin Kumar did forging on his own and he did not know it. Since he did not know about it and instance took place without his knowledge he is not responsible. Further we find that even t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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