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2015 (11) TMI 1018 - CESTAT KOLKATA

2015 (11) TMI 1018 - CESTAT KOLKATA - TMI - Suspension of CHA License - Non maintenance of separate accounts - Sub letting of license - Held that:- Imported goods involving mis-declaration and under valuation were seized on 4th July, 2012. Shri Ravi Madan, the proprietor of the importing firm in his statement dated 27/8/12, stated that their CHA is M/s. Kapoor & Co.; however, he transacted all the business and made the payments to Shri Prasenjit Banerjee of M/s. First Logistic Co. Shri Prasenjit .....

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ttedly, enquiry is pending or contemplated. Accordingly, we hold that the Ld. Commissioner has rightly suspended the license and the order passed by him does not suffer with infirmity on account of the same not being an immediate suspension order. - No infirmity in impugned order - Decided in favour of Revenue. - Customs Appeal No.-70023/2013 - ORDER NO.-FO/A/75143/15 - Dated:- 18-3-2015 - DR. D.M. MISRA, JUDICIAL MEMBER AND DR. I.P. LAL, TECHNICAL MEMBER For the Petitioner : Sri Tanmoy Chakrabo .....

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etition No. 599 of 2014 filed by the appellant in the matter of initiating the revocation proceedings pending before the Hon ble High Court, Kolkata. 2. The Ld. Advocate mentions that by order Dated- 31/10/2014 in G.A. No. 3226 of 2014 filed by fi M/s. Kapoor & Co., the Hon ble High Court of Calcutta has directed this Tribunal to hear and dispose of their appeal. Accordingly, the present appeal is taken up for its disposal. 3. Brief facts of the case are that an offence report dated- 30/10/1 .....

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essed the Bill of Entry in the present case using the CHA License of the appellant. Investigation conducted revealed that for letting out the license, the appellant used to get monetary benefit of ₹ 300 to ₹ 500/- per bill of entry and thereby earning ₹ 75,000/- per month for about 150 bills of entry per month by letting his CHA name used by others.Shri Awadesh Kr. Srivastava , partner of the CHA firm admitted this fact in his statement dated 22/08/2012. Above contentions were .....

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s for clearance of the import consignments. The CHA firm M/s. Kapoor & Co. intentionally did not maintain the accounts and records of import clearances and follow the procedure for observing the know your customer (KYC) guidelines to verify antecedent, correctness of importer exporter Code (IEC) Number etc. and thereby violated the various provisions i.e. Regulation 12, 13 (a) & (b) (d) & (o), 13 (k) and 18 of the CHALR, 2004.Consequently, Commr. of Customs (Airport & Admn.) su .....

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, however, suspended the license on 15th November, 2012 and confirmed the same during the post decisional hearing. It is the submission that there is a lapse of about 100 days in suspending the license from the date of detection of the offence. He submitted that this Tribunal in its judgments (i) 2007 (219) ELT 522 (Tri.-Bang) in case of Tass Clearing Services Pvt. Ltd. Vs. Commr. of Customs, Hyderabad-II & (ii) 2009 (246) ELT 641 (Tri.-Chennai) in the case of Vector Freight Forwarders Vs. C .....

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rder is bad in law. He submits that the allegations of transfer of license to unauthorized persons is not sustainable as such persons were holders of G&H card. He submits that copy of the offence report was not given before suspending the license and no cross examination allowed. Appellant has also being sufficiently punished. In these circumstances, it is prayed to set aside the suspension order. 5. As per contra, the Ld. A.R. submitted that although goods were seized on 4th July, 2012 but .....

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the appellant has violated the various regulations of CHALR,2004 and therefore, the Ld. Commr. suspended the license on 15/11/2012. It is the contention that in the present case the order of suspension was passed within 15 days of the offence report as prescribed in the Boards Circular. In these circumstances, as there was no delay, the case laws cited by the appellant in case of Tass Clearing Service Pvt. Ltd. (Supra) and Vector Freight Forwarders (supra), are not relevant to the facts of the .....

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purpose of coming to a proper conclusion . 6. Heard both the sides and perused the records. 7.1 We find that the Ld. Commissioner has suspended the CHA license under Regulation 20 (2) of CHALR, 2004. The Provisions of Regulation 20 read as under: 20. Suspension or revocation of licence:- (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of par .....

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sioner of Customs or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1) the Commissioner of Customs may in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such Agent is pending or contemplated. 7.2 In the present case, imported goods involving mis-declaration and under valuation were seized .....

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bill of entry. Similar averments were made by other persons whose statements were recorded by the officers. Shri Awadesh Kr. Srivastava, the authorized signatory of the CHA firm in his statement dated 22/8/2012 admitted about letting out his license for monetary consideration. 7.3 In view of above facts, it appeared that the violations of the various regulations necessitated and immediate action for suspension of the license under Regulation 20 (2) of the said Regulation.He, therefore, suspende .....

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Circular wherein under para 7.2 it has been clarified that in cases where immediate suspension action against a CHA is required to be taken by the Commissioner of Customs under Regulation 20 (2), there is no need for following the procedures prescribed under Regulation 22. However, in such cases a Post decisional hearing should be given to the aggrieved party. Further, certain time limits in such cases has also been prescribed according to which, the investigating authority shall furnish its .....

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hat an offence has been committed. Moreover, for arriving on such conclusion, it is necessary to examine various evidences and the progress of on going investigation. The Ld. A.R. however, submitted that in the present case, last statement was statement dated 5/9/12 of Shri Joy Prakash Gupta and thereafter an offence report dated 30/10/2012 was prepared by the investigating authority. We are of the view that the time taken by the Investigating Authority in preparation of the offence report is th .....

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ders was seized on 12/08/2008 and thereafter only one statement was recorded on 22.09/2008 and the license was suspended on 18/11/2008. Under these circumstances, Tribunal held that the action taken for suspending the license did not qualify for immediate suspension. Moreover, the charges in both the cases were not found serious enough to continue the suspension order. In the present case,it is noticed that a series of statements were recorded during the course of investigation from which inve .....

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sidered in the proper perspective because other relevant words are important for the purpose of coming to an appropriate conclusion in this respect which are as follows: I. Notwithstanding; II. In appropriate cases, III. Where an enquiry against such agent is pending or contemplated, Therefore, the word immediate action cannot have any independent leg to stand unless it is fit in the circumstances in respect of all or either of the conditions as above. 8. On analysis of the facts stated above, w .....

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