TMI Blog2015 (4) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... real exporter with reference to the clearance of goods and therefore, the appellant are guilty of Violation of Regulation 13(e). The appellant is guilty of violating the CHALR Regulations. However we also hold the view that the appellant cannot be disabled permanently for the violations as that would deprive him of his source of livelihood as well as deprive his employees of their source of livelihood. It would meet the ends of justice if the license is revoked for limited period. Having already suffered revocation for a year it would be sufficient punishment to continue the revocation till 31-12-2015. Accordingly we order that the revocation of the license would continue till 31-12-2015. From 1-1-2016 the license would become operative on forfeiture of the security deposit. - Decided partly in favor of appellant. - C/86231/2014-Mum - Final Order No. A/921/2015-WZB/CB - Dated:- 21-4-2015 - Shri Anil Choudhary, Member (J) and P.S. Pruthi, Member (T) Shri S.N. Kantawala, Advocate, for the Appellant. Shri M.S. Reddy, Deputy Commissioner (AR), for the Respondent. ORDER [Order per : P.S. Pruthi, Member (T)]. - This appeal is directed against the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the CHA license and also forfeiture of the entire amount of security deposit. The appellant is in appeal before us against this order of the Commissioner. 3. Heard both sides. 4. The learned Counsel very forcefully argued that the misdeclaration of the goods which was detected on opening of the container for examination, was brought to the notice of Customs by Shri Sohel Director which is evident from the mobile phone records of the Director. Further that the culprit Mr. Anand Kursija who was arrested has nowhere implicated the appellant in his statement recorded by the Customs. Regarding the alleged violation of CHALR regulations, he submitted that they had accepted the authorisation from the exporter and the IEC code of the exporter was verified by them from the DGFT website. Therefore, the Violation of Regulation 13(a) is not established. About Regulation 13(d) which requires that the CHA shall advise his client to comply with the provisions of the Customs Act, he submitted that it has nowhere been brought on record that the appellant was aware of the dubious credentials of Mr. Anand Kursija. Nor is the allegation of knowledge on his part of prohibited goods being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Anand in February, 2010. But there is no evidence on record to show that the appellant was sure of the true credentials of Mr. Anand. It appears from the statement of Mr. Sohel that Mr. Anand had merely come in contact with him in May, 2008 in connection with an export clearances of Dal husk in the case of M/s. Purifira Foods. There is no evidence of Mr. Sohel knowing Mr. Anand well enough to believe the identity of person who called himself a representative of the exporter M/s. Crescent Trading and Impex. It is also an undisputed fact that Mr. Anand prepared the letterhead of the exporting firm in his office computer, got a rubber stamp made of the export and signed as authorized signatory of the exporter on the authorization. Further, the IEC holder Shri Nadel Khan denied signing the subject shipping bill or authorizing any one to sign on his behalf or to give an authorization on his behalf. Both Shri Nadel Khan and Shri Sohel denied knowing each other. Therefore, the appellant has violated Regulation 13(a) for not taking any precaution whatsoever to obtain an authorization himself from the exporter and not checking the credentials of the person who came with Shri Anand prete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EC Holder and suitably advising him of his responsibilities under the Customs Act. 6.2 The appellant have also been charged for violating Regulation 13(e) which requires them to exercise due diligence and ascertain the correctness of information which they impart to their client with reference to the clearance of Cargo. The appellant got the goods carted into the CFS in containers. The goods were contained in bags which did not bear marks and numbers. The appellant failed to ensure that the goods should have been carted in bags and not in the container itself, as per the check-list. This was clearly a violation of the proper procedure laid down. Had the proper procedure been followed it would have facilitated proper examination and easier detection of the prohibited goods which were detected when the containers were ordered to be emptied. Mr. Anand had prepared the export invoices and fraudulently signed them and also gave the fake stamp of the exporter to the CHA in whose office someone signed the export declaration forms. Shri Sohail Director had also admitted that Mr. Anand had liasioned with him in the name of the exporting firm. In these circumstances the appellant CHA cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Hon ble Bombay High Court decision in the case of Commissioner v. Worldwide Cargo Movers - 2010 (253) E.L.T. 190 (Bom.) in which the revocation of CHA License was upheld by the Hon ble High Court which set aside the CESTAT order cancelling the revocation. It was held by the Hon ble Court that (sic) in this case the CHA License was revoked earlier by the Commissioner for their failure in adhering to Regulations 13(d), (e), (i), (n) 19(8) of the CHALR (not advising their clients correctly, not exercising due diligence, not ensuring that correct documents and information are given, not discharging their duties in accordance with law and vicarious responsibility of CHA for all acts or omissions of their employees. The revocation of CHA License by the Commissioner was set aside by Hon ble CESTAT. However the Hon ble High Court set aside the decision of CESTAT and upheld the Commissioner s order stating that In a departmental proceedings one has to see whether the principles of natural justice are followed and the findings are justified from the material on record. Once both these aspects are satisfied if an outsider Tribunal interferes, its findings and order will be importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngency of the penalty, the fact that the appellant has already been unable to work his license for a period of 8 years . . In the present case we find that the CHA could not be unaware of misuse of his license because he did not verify the exporter whose IEC No. was being used. And the license has been revoked only one year back. Therefore, the facts and circumstances are different. (b) The case of A.M. Ahamed Co. v. Commissioner of Customs (Import) - 2014 (309) E.L.T. 433 (Mad.) dealt with a case where the time limits of inquiry under Regulation 20/22 were not followed. And the importer had settled the matter before the Settlement Commission. In these circumstances the High Court observed that whereas the main importer s matter was settled, the revocation throws the petitioner out of business and deprives it of its livelihood. Therefore, the High Court set aside the order of prohibition. Here too, the facts do not apply to the present case. (c) The case of Jai Ambe Logistics Tribunal Order No. A/1750/2014/ CSTB/C-I, dated 19-11-2014 [2015 (327) E.L.T. 730 (Tri. - Mumbai)] does not apply as it dealt with a case of sub-letting and the Tribunal held that procurement o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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