TMI Blog2015 (7) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been admitted by the importers themselves before the Settlement Commission. If that be so, the appellant CHA could not be said to have discharged his duties and obligations with any efficiency at all. It is thus evident that the appellant has been grossly negligent in the discharge of his statutory functions. As regards the charge of contravention of Regulation 13(k), it is an admitted fact on record that the charged CHA did not maintain any import or export register showing details of the consignments handled by them and the dockets maintained by them were incomplete and they did not have the authority letters in many cases and the CHA delivery challans for having delivered the goods to the importers after clearance by the Customs. A case of sub-letting of licence by CHA, obtaining Customs pass for non-employees, removal of goods without obtaining authorisation from importers was considered by the Hon’ble High Court of Gujarat in OTA Kandla Pvt. Ltd. [2011 (3) TMI 801 - GUJARAT HIGH COURT]. 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nments. During the years 2008-09 and 2009-10, out of the total 89 import consignments handled by the CHA firm, 74 consignments were handled by Shri Ashley. In respect of the transactions pertaining to M/s. Kirmi Expo and J.M. Traders, these transactions were undertaken by Shri Ashley and the CHA filed the bills of entry without meeting the importers and without verifying the classification and other particulars declared in the bills of entry. S/Shri Manish Thakkar and Narendra Gala in their statements recorded under Section 108 of the said Customs Act also admitted to misusing the IEC codes of five import firms for import of laminate sheets and they had interacted only with Mr. Ashley and none else and the CHA licence of the appellant firm were used for clearance of the import cargo. The investigation conducted revealed that the appellant CHA had allowed Mr. Ashley of Able Co. and Mr. Martin Joseph of M/s. Akanksha Shipping to use its licence independently for monetary consideration. 2.1 Based on the above, a charge sheet was issued to the appellant CHA imputing the following charges and alleging contravention of, - (1) Regulation 12 of CHALR, 2004, for sub-letting its CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferential duty liability, interest and nominal fine and penalty had granted immunity. Under the CHALR proceedings, the licence of the appellant was revoked which was challenged before the Hon ble High Court of Madras by way of a writ petition No. 30884 of 2013 = [2014 (309) E.L.T. 433 (Mad.)] and the Single Judge who heard the matter vide order dated 19-8-2014 had set aside the revocation on the ground that the same throws the petitioner out of business and deprives them of their very livelihood and it would be unfair to impose the extreme penalty upon the petitioner by revocation of CHA licence. The ld. Counsel submits that the ratio of the said decision applies squarely to the facts of the present case and therefore, the revocation of CHA licence should be set aside. (b) During the inquiry proceedings conducted under the CHALR, both Shri P.B. Nair, Director and Shri Sopan Dhamle had stated that they had given the statements before the DRI under Section 108 of the Customs Act under duress and pressure and they contradict the statement made that they had sub-let the CHA licence to Mr. Eugene Ashley. They have also stated that they had the requisite authority letters from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings are justified from the material on record. Once these aspects are satisfied, if an outsider Tribunal interferes, its findings and order will be improper and perverse. In the said decision it was further held that the Commissioner of Customs is responsible for the happenings in Customs area and to maintain discipline thereat. The Tribunal is not expected to interfere on the basis of its own notions of misplaced sympathy. The ld. DR submits that in the present case, there is no allegation that in the inquiry proceedings conducted, any principles of natural justice has been violated and any prejudice was caused to the appellant. Accordingly, he pleads for upholding the impugned order in the light of the law laid down by the Hon ble Bombay High Court in the case cited supra. 5. We have carefully considered the rival submissions. Our findings and conclusions are discussed in the ensuing paragraphs. 5.1 Our first observation is that there is no allegation made by the appellant as urged before us that proper procedure of inquiry was not followed or there has been any violation of the principles of natural justice either by the Inquiry Officer or by the adjudicating authority. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 2500/- for LCL cargo. (ix) Shri Menon also admitted to misclassification of imported laminated sheets by J.M. Traders and Kirmi Expo and added that for all the acts of omission and commission by Shri Ashley under his CHA licence, the CHA firm was fully responsible. 5.3 It is on record that none of the above statements have been retracted. It is a settled position in law that statements recorded under Section 108 of the Customs Act is a valid piece of evidence as held by the Hon ble Apex Court in the case of Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] and a lot of other decisions. Further in K.I. Pavunny v. Asst. Collector of Central Excise [1997 (90) E.L.T. 241 (S.C.)], the Hon ble Apex Court held that - In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. The Hon ble Madra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of Regulation 13(k), it is an admitted fact on record that the charged CHA did not maintain any import or export register showing details of the consignments handled by them and the dockets maintained by them were incomplete and they did not have the authority letters in many cases and the CHA delivery challans for having delivered the goods to the importers after clearance by the Customs. With regard to contravention of Regulation 19(8) of not exercising proper supervision over the conduct of the employees, it is an admitted position that Mr. Eugene Ashley and Mr. Martin Joseph had handled all the import and export transactions in respect of the clients brought by them and the CHA did not exercise any control over them with regard to compliance with the provisions of Customs Act. In such a situation, the contravention of Regulation 19(8) stands and cannot be wished away. 5.5 It has been argued that in the inquiry proceedings conducted in April, 2011, Shri Dhamale and Mr. Menon had deposed during their cross-examination that they had given statements admitting their involvement of the commissions and omissions before the DRI under duress and threat and therefore, these sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the Commissioner has to consider all relevant aspects, and draw a balance sheet of the gravity of the infraction and the mitigating circumstances. The difference in approach for consideration of cases warranting revocation or suspension has to be borne in mind while dealing with individual cases. The proportionality question is of great significance as action is under a fiscal statute, and may ultimately lead to a civil death. ([Falcon Air Cargo and Travels (P) Ltd.]). 13. It should be borne in mind that, in disciplinary matters, the Commissioner is responsible for the happenings in the Customs area, and for the discipline to be maintained thereat. If he takes a decision necessary for that purpose, the CESTAT would, ordinarily, not interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or their employees. The decision is best left, to the disciplinary authority save in exceptional cases where the punishment imposed is shockingly disproportionate or is mala fide. 5.7 A case of sub-letting of licence by CHA, obtaining Customs pass for non-employees, removal of goods without obtaining authorisation from importers was considered by the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court in the Commissioner of Customs v. Worldwide Cargo Movers [2010 (253) E.L.T. 190 (Bom.)], while dealing with a case of revocation of CHA licence, 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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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