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Dakor Clearing & Shipping P. Ltd. Versus Commr. of Cus. (General) , Mumbai

2016 (1) TMI 625 - CESTAT MUMBAI

Revocation of CHA licence - unauthorized usage of the CHA licence - contravention of the provisions of Regulations of the CHALR, 2004 - Held that:- In charge-sheet dated 8-6-2009, no name of witnesses have been given or cited. Further, the statements of the persons which have been relied upon by the learned Commissioner, accepting the same as confessional in nature, but the said persons were neither examined nor cross-examined in the proceedings before the Commissioner and as such, have got no e .....

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t that by way of footnote on the BCHAA Pass, it is mentioned - “not valid for Customs’ work”.

Save and except venial breach on part of CHA under Regulation 13(n) of the CHALR, no other Articles of Charges are proved against the appellant CHA. - Consequently, the license of the CHA is restored forthwith and the balance amount of security deposit forfeited by the impugned order shall be re-credited to the CHA’s account. Thus, the appeal is allowed in part in the above terms. - Decided p .....

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ssed by the Commissioner of Customs (General), Mumbai whereby the CHA licence of the appellant has been revoked. 2. The brief facts of the case are that the appellant is holder of the CHA Licence No. 11/954. They have been granted CHA License under Regulation 10(1) of the CHALR, 1984 read with Regulation 9(1) of CHALR, 2004 read with Regulation 7(1) of CBLR, 2013 in Mumbai Customs. 2.1 A specific intelligence was received in the Directorate of Revenue Intelligence (DRI), that one Salim .....

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Pvt. Ltd. (appellant). 2.2 The premises of the present appellant were inspected on 21-11-2008 and the dockets pertaining to M/s. Mahek Consultancy Services were taken over under summons and the live consignments of the CHA were put on hold for further investigation. In the meantime, the Bills of Entry filed for the import consignments by the appellant CHA - M/s. Dakor Clearing & Shipping Pvt. Ltd. were kept on hold to avoid the unauthorized sub-agents from clearing the goods, under the .....

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icense of his CHA company and it was agreed that M/s. Dakor Clearing & Shipping Pvt. Ltd. would raise a bill directly in the name of his clients; that the CHA firm issued Customs Pass and BPT pass in the name of his brother Shiraz Lalani and Vinod Manjrekar showing them as their employees; that the role of the CHA was restricted to signing documents and all the work relating to the clearance of consignment was looked after by employees of M/s. Mahek Consultancy Services; that he had filed ar .....

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r job; that he allowed Salim Lalani to clear the goods for their clients under his CHA firm; that Salim brought 24 jobs of clearance of import consignments of various importers during the period 28-9-2008 to 4-10-2008; that since they filed the documents with the Customs online, Salim Lalani had given him documents like authorization, invoice, packing list, Bill of Lading, IEC code and GATT declaration of the respective importer; that the follow up and clearance related work like group passing, .....

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e name the above goods were imported, were fake. 2.5 In view of the above, it appeared to the Revenue that appellant/CHA firm has contravened the provisions of Regulations of the CHALR, 2004. Therefore, the CHA License No. 11/954 was placed under suspension vide Order No. 141/2009, dated 6-3-2009 under the provisions of Regulation 20(2) of CHALR, 2004 for suspected violation of Regulations of CHALR, 2004 and inquiry proceedings were initiated under Regulations 22 of CHALR, 2004 vide notice .....

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an authorization from each of the companies, firms or individuals by whom he is for the time being employed as CHA and produce such authorization whenever required by the Dy. Commissioner of Customs or the Assistant Commissioner of Customs. Article of Charge - III : As per Regulation 13(b) of the CHALR, 2004 - A CHA shall transact business in the Customs Station either personally or through an employee duly approved by the Dy. Commissioner of Customs or the Assistant Commissioner of Custom .....

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: As per Regulation 19(8) of the CHALR, 2004 - A CHA shall exercise such supervisions as may be necessary to ensure the 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. 2.6 The Inquiry Officer submitted his inquiry report vide letter dated 8-7-2014 wherein he held all the six charges as not proved against the CHA. The findings of the Inquiry Officer are as unde .....

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ain importers by the officers of DRI, by taking the support of some case laws. The case laws referred to, no doubt speak that the confessional statements given voluntarily shall have evidential value. Against this version of the Presenting Officer, the charged CHA has contested that the persons concerned were neither examined nor cross-examined in the Enquiry proceedings, hence their statements shall not be taken into consideration. The inquiry officer has stated that he accepts the proposition .....

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he statements are voluntary or otherwise. Keeping aside this particular aspect of legal and technical nature, Inquiry Officer has further attempted to analyze the defense submission of the charged CHA with reference to the Article of Charges framed against them. (ii) The Inquiry Officer has stated that the salient points that are urged by the charged CHA are as under : - (a) It was stated that in his statement Shri Nimesh Joshi has deposed that he was aware that 9 IECs of 9 different firms were .....

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e as available in the relied upon statements of Shri Nimesh Joshi and Shri Salim Saddrudin Lalani. However the statements categorically speak out that the charged CHA has taken the assistance of Shri Lalani in developing business which does not amount to lending or transferring licence. (c) While the Presenting Officer has squarely relied upon the statements of persons such as Shri Salim Saddrudin Lalani, Shri Javed Lalani and Shri Manjrekar and concluded that the statements are of confessional .....

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forming their duties and committed various acts which display their lack of adherence to the CHALR, 2004 and are found to be culpable for violation of the impugned regulations of CHALR, 2004. He also held that the CHA deserves punishment proportionate to violations of various provisions of CHALR, 2004. Accordingly, in exercise of the powers conferred under Regulations 22(7) and 20(1) of the CHALR, 2004, the Commissioner ordered for revocation of the CHA License of the appellant, M/s. Dakor Clear .....

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f the Inquiry, the Presenting Officer submitted a Brief Report dated 5-2-2013, copy received by the CHA on 24-2-2013. A reply was filed before the Inquiry Officer by written submission dated 16-5-2013. All the articles of charges were denied by the appellant CHA. By report dated 8-7-2014, the Inquiry Officer filed his report and held that none of the Articles of Charges have been proved. The Commissioner issued a Disagreement Memo on 4-8-2014 and thereafter by Written Submissions dated 1-9-2014 .....

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y Officer, who had dropped the Articles of charges, being the initial fact finding authority. 3.2 The Commissioner also did not appreciate that the appellant/CHA has suffered enough punishment, as an alternative submission, as the CHA licence has remained inoperative/suspended for approximately 6 years, from the date of suspension i.e. 4-3-2009. Reliance is placed on the judgments of the Hon ble Madras High Court reported in 2014 (309) E.L.T. 433 in the case of A.M. Ahmed & Company and .....

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ing Forwarding Pvt. Ltd. reported in 2013 (294) E.L.T. 472, wherein this Tribunal followed its earlier decisions and withdrew the revocation order on the ground of sufficient punishment already undergone. In Manilal Patel s case the enquiry officer had dropped the articles of charges and the notice was not issued under the CHALR within 90 days from receipt of the offence report. Recently the Commissioner in the case of Daroowala Brothers and Company has passed an adjudication order dated 18-7-20 .....

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inquiry has not been completed within the stipulated time-limit and on this ground also the impugned order requires to be set aside. The appellant therefore, prays that since the impugned order is passed after almost 6 years from the date of suspension order i.e. on 19-11-2014, whereas the suspension order was passed on 4-3-2009, the fundamental right to do business has been restricted for this entire period, and the case is not falling under the category of the rarest of the rare cases or seri .....

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aid persons were neither examined nor cross-examined in the proceedings before the Commissioner and as such, have got no evidentiary value in terms of the provisions of Section 138B of the Customs Act. There is no evidence on record that the CHA license of the appellant have been allowed to be used by unauthorized person for monitory benefit. There is no evidence of any sale or transfer of the license and that there is no illegality in procuring work through other persons and/or referees. It is .....

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nation, was given. There is no evidence on record that non-authorized persons or non-employee of the appellant CHA have handled the clearance works. The appellant through its partner had produced an authorization letter for carrying out the clearance work on behalf of the client. It is further evidence that there is no restriction on the CHA to accept the authorization of a client through the trusted intermediary. The observations of the learned Commissioner that in view of the fact that authori .....

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ce of violation of advice has come on record. Further, no discrepancies have been found by the Customs authorities in the documents filed by the appellant-CHA. So far the mis-declaration is concerned, as regards the goods under Bill of Entry, it has no way come on record that the same was with the knowledge or abetment of the CHA. Further, no case of violation of Regulation 13(d) of CHALR has been made out, which requires the CHA to transact business in the Customs Station either personally or t .....

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through the intermediary and did not make any attempt to personally meet the importer. Thus, we find that there is a venial breach of the provisions of Regulation 13(n) of the CHALR. None of the importers have been found to be fake or non-existent. 5.3 So far the Article of Charge under Regulation 19(8) is concerned, the appellant CHA as per Regulation 19(8) of CHALR, 2004 is required to exercise such supervision as may be necessary to ensure the proper conduct of its employees in the tran .....

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