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TMI Blog2015 (5) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... Welcome Air Express Pvt. Ltd., has been revoked and the full amount of security deposit of the said applicant, is forfeited. 3.1 Briefly stated the facts of the case are that on 13-11-2008, the Officer of DRI, Kolkata, made seizure of 5415 kgs. of Red Sanders valued at Rs. 21,66,000/- (approx.); the prohibited items attempted to be exported outside India through N.S. Dock, Kolkata, stuffed in Container No. BLJU2050020 (20') said to contain iron sponge. It was found that the Shipping Bill No. 5513131, dated 7-11-2008 in the name of Himalayan Tours & Travels, Siliguri. Covering the said consignment was filed by the impugned, CHA. 3.2 From the investigation conducted, it appeared that the CHA filed the said Shipping Bill by violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Forum. 4. The ld. Advocate appearing for the appellant, submitted that in the present case, the appellant was approached by one forwarding agent, M/s. Draft Cargo Ways (India) Ltd., working, inter alia, for M/s. Himalayan Tours and Travels as forwarding agent. The documents for clearance of 600 bags of iron sponge meant for export and a letter of authorization, were handed over to him by the said forwarding agent for clearance purposes. As per authorization, the appellant's job was limited to clearance of consignment from Customs and Docks based on the documents provided by the exporter, M/s. Himalayan Tour & Travels through the said M/s. Draft Cargo Ways (India) Ltd. Accordingly, the said goods were stuffed in a container ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this fact, it is submitted that the charges labelled against the CHA for violation of Regulation 13(b) does not arise. Regarding the violation of Regulation 19(8), the CHA shall exercise necessary supervision as may be necessary to ensure the proper conduct of their employee in the transaction of business and be held responsible for all acts or omissions of his employees. The ld. Advocate submits that there was no misconduct on the part of the Jetty Sircar, it cannot be said that the CHA in the present case, did not exercise the necessary supervision. It is submitted that in the present case, the CHA Licence was revoked on 5-8-2011 and therefore, he has already been punished sufficiently and now his license should be restored as it affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat various obligations have been put on the CHA under CHALR, 2004. Regulation 13(b) provides that "A Customs House Agents shall transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs". Regulation 13(d) provides that "A Customs House Agents shall advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs". Regulation 19(8) provides that "The Customs House Agent shall exercise such supervision as may be necessary to ensure proper conduct of any such employees in the transaction of bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to the appellant, CHA by M/s. Draft Cargo Ways (India) Ltd. and not by the exporter. We find that in Para 25 of the Order, the ld. Commissioner has recorded that Shri Khursheed Hashim, Managing Director of the CHA Firm, stated that before clearing the subject consignment, they did not even bother to verify the genuineness of export or the export cargo. As such, the CHA was not aware about the exporter and therefore, did not advise the exporter suitably. According to Regulation 19(8), the CHA shall exercise the supervision and conduct of his employee. However, in the present case, as Shri Mithun Ghosh, was not the employee of the CHA Firm, but employee of another Firm, i.e., M/s. Draft Cargo Ways (India) Ltd., it is difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangeroid Remedies Ltd. v. Union of India & Ors. [1999 (1) SCC 259 = 1998 (103) E.L.T. 5 (S.C.)]. 17.1 The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order." In view of the above principle laid down by the Hon'ble Supreme Court, the proportionality was considered in case of Worldwide Cargo Movers - 2010 (253) E.L.T. 190 (Bom.), wherein the Hon'ble Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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