TMI Blog2015 (2) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs 1962 has clearly admitted that he has merely signed the documents on behalf of the M/s. D/M. Mehta & Bros. and all the work relating to documentation, examination and clearance of the imported goods were undertaken by Shri Prashant Popat. There is no reason to disbelieve the statements of Shri Bhavesh Mehta even though he had subsequently retracted the same. Further, this retraction was done by means of an affidavit before a Notary and not addressed to the officer who had recorded the statement. There is no evidence brought before us that the said retraction was ever made known to the department at all. Therefore, the so called retraction of Shri Bhavesh Mehta is clearly an after-thought as it has not been informed to the department that the statement is being retracted. Retraction made is not valid and the facts recorded in the statements have been corroborated by others involved in the transaction, the said statements can be taken as a valid piece of evidence in a proceeding under CHALR also and we hold accordingly. CHA did not know the importers. The CHA allowed Shri Prashant Popat to do the clearance work relating to the imported goods. The CHA did not verify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant and Shri Prashant Popat which were recorded by the Directorate of Revenue Intelligence (DRI) under Section 108 of the Customs Act, 1962. As per Regulation 22 of CHALR, 2004 oral evidence of the persons involved should have been taken and opportunity to cross-examine the witnesses should have been afforded to the appellant in the present case neither Shri Bhavesh Mehta nor Shri Prashant Popat were examined in the proceedings nor were they made available for cross-examination as envisaged under Regulation 22 and therefore, the department could not have relied on the statements recorded under Section 108 of the Customs Act, 1962 and could not have made the same as basis for coming to the conclusions in the inquiry proceedings. This is more so, as both Mr. Bhavesh Mehta and Mr. Prashant Popat had retracted their statements recorded under Section 108. In the list of prosecution witnesses, the names of Shri Bhavesh Mehta and Shri Prashant Popat also figure and they were not examined during inquiry nor were they offered for cross-examination. Therefore, all these omissions would render the entire inquiry proceedings null and void. Reliance is placed on the decision of this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee of CHA-firm whose proprietor was related to appellant's partner. The appellant had obtained letters of authority in undertaking the transactions from the various importers and these letters had not been taken note of by the adjudicating authority. 3.5 Reliance is placed on the decisions of this Tribunal in the case of K.S. Sawant Co. vs. Commissioner 2012 (284) ELT 363 and Thawerdas Wadhoomal vs. Commissioner of Customs 2008 (221) ELT 252. 3.6 It is also contended that as regards the re-warehousing certificate issued by the importer and furnished by the appellant to the Customs authorities, the Customs authorities had discharged the bond and bank guarantee by accepting the re-warehousing certificates. The appellant had no knowledge that the re-warehousing certificates furnished by them to the Customs authorities were fake or bogus, as alleged. 3.7 It is also submitted that the appellant has been carrying on CHA business since 1929 and they handled large volumes of business. Therefore, the action of revocation of licence is disproportionate to the gravity of the offence committed and reliance is placed on the decisions of this Tribunal in the case of Baraskar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashant Popat and Shri Bhavesh Mehta were not subjected to examination by the inquiry officer or offered for cross-examination by the appellant CHA, it is evident from the inquiry proceedings that Shri Bhavesh Mehta was the Defence Assistant of the CHA, M/s. D.M. Mehta and Brothers. Further, Shri Prashant Popat was an employee of the CHA-firm M/s. P.H. Mehta and Company and the proprietor of the said firm, Shri P.H. Mehta, is the son of Shri D.M. Mehta, partner of the appellant-CHA firm, Thus, both Shri Prashant Popat and Shri Bhavesh Mehta were under the control of the appellant-CHA M/s. D.M. Mehta and Brothers. Even if the prosecution had not examined these persons, the appellant-CHA could have procured them as defence witnesses and subjected them to examination which they have not done. Further, it is seen that even though the summons were issued to all the prosecution witnesses, many of them did not turn up in spite of a number of opportunities given and therefore, the inquiry was completed without recording the statements of Shri Prashant Popat or Shri Bhavesh Mehta. It is seen from the records that the notices for appearance were issued by the inquiry officer on three occasio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the signature of the importers were attested in absentia by either P.D. Mehta or Bhavesh Mehta. If the appellant CHA never met the importer, he could not have tendered any advice to the importer to comply with the provisions of the Customs Act. Therefore, once violation of regulation 13(a) is established, contravention of regulation 13(d) is also established, for compliance to 13(d), the CHA should know and meet the importer, which is not the position in the present case. Thus when the partners of the appellant CHA firm themselves have admitted to not knowing the importer, there is no need to prove the case by the department as the settled legal position is that admitted facts need not be proved. The decisions of the Hon'ble Apex Court in the case of Systems and Components Pvt. Ltd. [2004 (165) ELT 136 (SC)] and of the hon'ble Madras in the case of Govindasamy Raghupathy [1998 (98) ELT 50 (Mad)] refer. Therefore, it cannot be said that the appellant's interests were prejudicially affected by non-examination of Shri Bhavesh Mehta or Shri Prashant Popat. 5.3 Shri Bhavesh Mehta, in his statement recorded under Section 108 of the Customs 1962 has clearly admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods after clearance from the Custom were diverted and were never sent to the declared destinations. The facts contained in the statements of Shri Bhavesh Mehta and Shri. Prashant Mehta were also corroborated in the examination proceedings of Mr. D.M. Mehta, and Mr. H.D. Mehta, the partners of the appellant CHA. Thus, if we look at the whole transactions, it is clear that the CHA did not exercise any control, whatsoever, and everything was done by Shri Prashant Popat with the active connivance of Shri Bhavesh Mehta, for a consideration. The subsequent retraction of their statements by these two persons do not reduce the evidentiary value of their original statements for the reason that the retractions were made after a lapse of time and it was not done before the officer who had recorded the statement. The facts narrated therein were also corroborated by the partners of the CHA firm who were examined during the inquiry proceedings. The decision of the hon'ble Allahabad High Court in the case of Zakri Ishrati [2013(291) ELT 161 (All).] is relevant and applicable in the facts of the present case. The argument of the ld. Counsel that the reliance cannot be placed on the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... help. 5.6 A case of sub-letting of licence by CHA, obtaining customs pass for non-employees, removal of goods without obtaining authorization from importers were considered by the hon'ble High court of Gujarat in OTA Kandla Pvt. Ltd. [2011 (269) ELT 467 (Guj)]. The hon'ble high court upheld the contention of the Revenue that sub-letting amounted to transfer of CHA licence and refused to interfere with the punishment of revocation of CHA licence awarded by the Commissioner of Customs, the Licensing authority. Similarly in a matter pertaining to HB Cargo Services [2011 (268) ELT 448 (A.P.)], wherein also the license was sub-let and no authorisations were obtained from the exporters, the hon'ble AP High court upheld the punishment of revocation of CHA licence by holding that in a Customs area, it is the Commissioner who is responsible for the happenings, discipline to be maintained and he is best placed to understand the importance of CHA and if he takes a decision for that purpose, CESTAT should not interfere on the basis of its own notions of difficulties likely to be faced by the CHA or its employees and should not be swayed by considerations of mis-placed sympathy. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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