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2015 (5) TMI 997 - CESTAT KOLKATA

2015 (5) TMI 997 - CESTAT KOLKATA - 2015 (325) E.L.T. 156 (Tri. - Kolkata) - Revocation of CHA licence - the prohibited items attempted to be exported outside India - 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. - he ld. Advocate has submitted that the charges labelled against them for the violation of Customs Act, were set aside by the Commissioner (Preventive) a .....

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nd to indulge in gross misconduct and contravening the various provisions of Regulation under CHALR, 2004. - ld. Commissioner has rightly revoked the CHA License and forfeited the security deposit and therefore, we do not find any merit in the present appeal. - Decided against the appellant. - C/75205/2014-DB - Final Order No. A/75265/2015 - Dated:- 25-5-2015 - Dr. D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri Ananda Sen and S.K. Poddar, Advocates, for the Appellant. Shri S.P. Pal, Ap .....

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acts of the case are that on 13-11-2008, the Officer of DRI, Kolkata, made seizure of 5415 kgs. of Red Sanders valued at ₹ 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&e .....

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urse of adjudication, the Licencing Authority, i.e., Commissioner of Customs (Airport & Admn.) vide Order dated 5-8-2011, revoked the CHA License and forfeited the security deposit made by the CHA. 3.3 In appeal preferred against the above order of the ld. Commissioner, the CHA claimed that the charges in the instant case against them were dropped relating offences under the Customs Act, 1962 vide Order dated 5-1-2012 passed by Commissioner of Customs (Preventive) while adjudicating the .....

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License and forfeited the full amount of security deposit made by the CHA. Being aggrieved, the present appeal is filed 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, .....

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that the goods meant for the export by them, did not contain any specified/contraband goods contrary to the provisions of the Customs Act, 1962. Since the Shipping Bill was filed by the CHA on the basis of invoices and packing list, provided by the exporter, it was not in their knowledge that the impugned export was in violation of provisions of Customs Act, 1962 and therefore, there was no occasion to advice the client by the CHA. Accordingly, the ld. Advocate submits that the violation of Regu .....

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is a copy of Temporary Jetty Sircar Licence issued by Kolkata Port Trust, where the appellant, i.e., M/s. Welcome Air Express Pvt. Ltd., has authorized him to make delivery cargo to and take delivery of cargo from the Kolkata Port Trust. It is his contention that it is clear from the impugned license that Shri Mithun Ghosh was an employee of the appellant firm. In view of this fact, it is submitted that the charges labelled against the CHA for violation of Regulation 13(b) does not arise. Regard .....

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ed on 5-8-2011 and therefore, he has already been punished sufficiently and now his license should be restored as it affects his livelihood adversely. 5. As per contra, the ld. AR for the Revenue submitted that in Para 24 of the Order, the ld. Commissioner has given a detailed finding in respect of violation of Regulation 13(b) of CHALR, 2004. He submits that as per Regulation 13(b), a CHA shall transact business in the Customs Station either personally or through an employee duly approved .....

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, wherein he had stated that he had allowed M/s. Draft Cargo Ways (India) Ltd., to use his licence to clear the consignment on monetary consideration of ₹ 75/- per Shipping Bill. He further stated that the Jetty Sircar, namely, Mithun Ghosh, who actually did the clearance work at the Dock, was not an employee of the CHA, but he was the employee of freight forwarder, M/s. Draft Cargo Ways (India) Ltd.. As regards violation of Regulations 13(d) and 19(8) of CHALR, 2004, the ld. AR for the Re .....

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ent 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 business as agents and be held responsible for all acts or omissions of his employees in regard to their employment . It is evident fr .....

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Ways (India) Ltd. performed the clearance job on their behalf. Shri Khursheed Hashim further admitted that M/s. Draft Cargo Ways (India) Ltd. used his license for clearing consignment as they did not have CHA License. In mutual understanding, they were using the license for the last 2-3 years. In respect of each Shipping Bill, an amount of ₹ 75/- was paid to him. Shri Hashim also admitted that Shri Mithun Ghosh is the jetty sircar of M/s. Welcome Air Express Pvt. Ltd. and he is an employee .....

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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 .....

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License and the said employees of M/s. Draft Cargo Ways (India) Ltd. used to process the documents on behalf of the CHA. Accordingly, the CHA, M/s. Welcome Air Express Pvt. Ltd., failed to keep control and supervision on those employees of M/s. Draft Cargo Ways (India) Ltd., who used to process documents on behalf of CHA. 6.3 In the above background, we find that in the present case, we find that the appellant, CHA, did not transact the business either personally or through his employee, ad .....

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ts have been complied with, the Court would not ordinarily interfere with the quantum of punishment imposed upon a delinquent 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 H .....

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