TMI Blog2015 (10) TMI 1909X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the matter to notice of Assistant Commissioner of Customs/Deputy Commissioner of Customs and never tried to verify the antecedents of importer and relied upon third parties; thus failed to act in a bona fide manner – Impugned order is sustainable – Decided in favour of Revenue. - WP. No. 16832/2015, MP. No. 1/2015 - - - Dated:- 13-10-2015 - The Honourable Mr. Justice R. Mahadevan, J. For the Petitioner : Mr. Hari Radhakrishnan For the Respondent : Mr. K. Mohanamurali, SCCG ORDER This Writ Petition is filed to issue a Writ of Certiorari, calling for the records relating to the Order In Original No. 38294/2015, dated 29. 05. 2015 passed by the Respondent and to quash the same. 2. The case of the Petitioner is that the Petitioner Company is a licensed customs broker, bearing license No. 102 issued by Cochin Customs Commissionerate under the Regulation 9(1) of the Customs House Agents Licensing Regulation, 2005. The Petitioner had acted as a customs house agent for various importers. During the year 2012-2013, on investigation the Department alleged that one Company by name, M/s. Antonie and Becouerel Organic Chemical Company had cleared raw materials used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etor and IEC holder of the import Firm and Sh. Sandeep Lalwani, Power of Attorney of the Import Firm that they utilized the services of Sh. Sourirajan, who was well experienced in customs clearing field, but did not have a customs broker license or valid customs ID Card. Sh. Sourirajan used the license of the Petitioner Company and M/s. Evertrust Shipping and Logistics Pvt. Limited with the help of Sh. Satheesan B. Menon (authorised signatory of M/s. The Trading Corporation pvt Limited) who was running his own firm M/s. SL Shipping Services along with his wife Liza Sathish (also 'G' card holder and authorised signatory of the Petitioner Company). Sh. Sourirajan has also utilized the services of Sh. B. karthik, 'H' Card Holder of the Petitioner Company and Sh. M. Kanna, 'G' card holder of M/s. Steadfast International. In this connection, statements were recorded from Sh. Sourirajan, Sh. Satheesan B. Menon, Liza Sathish, Sh. B. Karthik, Sh. M. Kannan and Sh. E. Karunakaran (Managing Director and authorised signatory of M/s. Evertrust Shipping Agencies Pvt. Limited) b. Sh. R. Sourirajan, in his voluntary statement dated 15. 4. 2013 stated that he did not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Cappithan Agencies with his wife Liza Sathish as authorized signatory; that he misused the CHA license of M/s. The Trading Corporation Pvt Limited, M/s. Evertrust Shipping and Logistics Pvt Limited and M/s. Cappithan Agencies; that he allowed Sh. Sourirajan to utilize his office premises and allowed him to use the CHA license of all the three said CHAs; that he accepted that he abetted and induced Sh. Sourirajan to clear consignments by using the CHA license of the said three CHAs; that Sh. Sourirajan was using, one Sh. Karthick, who was a customs ID card holder of his Company. d. Liza Sathish, in her voluntary statement dated 17. 4. 2013, stated that she joined M/s. Cappithan Agencies as a signing authority in September 2012 and obtained a 'G' card in March 2013; that M/s. Cappithan Agencies started filing bills from April 2013 onwards; that so far they have filed 5 bills of entry for M/s. Antoine and Becouerel Organic chemical Company, out of which, three bills of entry were cleared by their staff Sh. Karthick and 2 bills of entries were pending for clearance; that the said importer has imported pharmaceuticals chemicals/drugs, which required a valid import li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Commissioner of Customs and thus, violated the provisions of Regulation 13(d) of the CHALR, 2004 (now Regulation 11(d) of the CBLR, 2013). 4. The customs broker never tried to verify the antecedents of the importer and relied upon Sh. Satheesan B. Menon and hence, contravened the provisions of Regulation 13(o) of the CHALR, 2004 (now Regulation 11(n) of the CBLR, 2013). f. In view of the above, it was found that a prima facie case existed against the Customs broker M/s. Cappithan Agencies and if the said customs broker was allowed to continue to operate, it would be detrimental to the interest of revenue and therefore, it was necessary to take immediate action against the said customs broker, to prevent them from further misuse of their licence. Hence, in exercise of the powers conferred under the provisions of Regulation 21 of the CHALR, 2004 (now Regulation 23 of the CBLR, 2013) M/s. Cappithan Agencies was prohibited from operating in Chennai Customs Commissionerate under the jurisdiction of Chennai Customs Zone, vide order dated 12. 07. 2013. Subsequently, as per the guidelines of the Board issued vide circular No. 09/2010 dated 8. 4. 2010, the case was forwarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 for prohibiting the working of such defaulting CHA in any section of the Custom House/Custom Station. Since the Petitioner has not fulfilled their obligations under the above said regulations, the impugned order, confirming the prohibition order, has been passed. Without availing alternative remedy of filing an appeal, the Petitioner has straight away approached this court by way of this Writ Petition. In such circumstances, this Writ Petition is liable to be dismissed. 4. The learned counsel for the Petitioner contended that the impugned order has been passed without jurisdiction as the licensing authority itself has permitted the Petitioner to operate the license and has only imposed a penalty of ₹ 10,000/- and that the Respondent cannot go beyond more than the punishment that is contemplated by the Customs Commissionerate, who had issued the licence and that if the license issuing authority does not revoke the license, the prohibitory order ought to be withdrawn and as the licensing authority has not revoked the license, the Respondent has no jurisdiction to continue the prohibition and prayed for quashing of the impugned order. 5. The learned Standing Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounter affidavit that on investigation and on the basis of the statements made from the concerned parties, the Respondent Department found that the Petitioner/ Customs Broker allowed unauthorized persons to handle customs clearance work, who in turn misused the opportunity to clear the consignments of pharmaceuticals and drugs, without import licence and without ADC's clearance, in contravention of the provisions of the Drug and Cosmetics Act, 1940 and the Rules made thereunder and hence, there had been major lapses on the part of the Petitioner and holding so, the Respondent Department prohibited the Petitioner from acting as the Customs house Agent. 10. At this juncture, it is relevant to extract the necessary provisions of the Act, Rules and Regulations, relied on by the Respondent, hereunder:- (i) Clause 5. 2 of the Circular No. 9/2010-Cus, dated 8. 4. 2010 reads as under:- (iii) Suspension or revocation against CHAs operating on 'C' form intimation basis:- 5. 2 Further, it is also clarified that the Commissioner of Customs at a customs station who had authorised a CHA to operate on 'C' form intimation, should inform the details of violations t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ); (2) the Petitioner allowed Sh. Satheesan B. Menon, who was not their employee, to do customs clearance work on their behalf and hence, the customs broker failed to do business either personally or through an authorised employee, as required under Regulation 13(b) of CHALR, 2004 (now Regulation 11(b) of the CBLR, 2013), (3) the Petitioner/customs broker not only failed to advise their client to comply with the provisions of the Customs Act, 1962, but also failed to bring the matter to the notice of Assistant Commissioner of Customs/Deputy Commissioner of Customs and thus, violated the provisions of Regulation 13(d) of the CHALR, 2004 (now Regulation 11(d) of the CBLR, 2013) and (4) the Petitioner/customs broker never tried to verify the antecedents of the importer and relied upon Sh. Satheesan B. Menon and hence, contravened the provisions of Regulation 13(o) of the CHALR, 2004 (now Regulation 11(n) of the CBLR, 2013). 10. Clause 5. 2 of Circular No. 09/2010 clearly indicates that the Commissioner of Customs, who had authorised the CHA to operate on 'C' form intimation at a Customs Station, may take action under Regulation 21 of CHALR, 2004 for prohibiting the working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices as CHA. In such circumstances, the person playing the role of CHA has got greater responsibility. The very description that one should be conversant with the various procedures including the offences under the Customs Act to act as a Custom House Agent would show that while acting as CHA, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as CHA by taking advantage of his access to the Department. The grant of licence to a person to act as CHA is to some extent to assist the Department with the various procedures such as scrutinizing the various documents to be presented in the course of transaction of business for entry and exit of conveyances or the import or export of the goods. In such circumstances, great confidence is reposed in a CHA. Any misuse of such position by the CHA will have far reaching consequences in the transaction of business by the customs house officials. Therefore, when, by such malpractices, there is loss of revenue to the custom house, there is every justification for the Respondent in treating the action of the Petitioner Applicant as detrimental to the interest of the nation and accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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