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2016 (2) TMI 438 - CESTAT CHENNAI

2016 (2) TMI 438 - CESTAT CHENNAI - TMI - Revokation of Licenced Customs Broker Licence - one of their employees forged the document of export shipment of polished granite slabs. - It submitted that SCN was not issued within 90 days from the date of suspension as per CHALR and also submits that no specific allegation was made for any contravention in the CHALR clause against the appellant. - Held that:- , it is evident that no proceedings initiated against the exporter or appellant under Customs .....

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ppellant is unsustainable and liable to be set aside. - Decided in favor of appellant. - Appeal No. C/40896/2014 - Final Order No. 41725/2015 - Dated:- 8-6-2015 - R. Periasami, Member (T) And P. K. Choudhary, Member (J) For the Appellant : Mr N Viswanathan, Adv For the Respondent : Ms Indira Sisupal, AC (AR) ORDER Per R Periasami The present appeal is arising out of the order dt. 5.5.2014 passed by Commissioner of Customs (Seaport-Import), Chennai against revocation of licence of Customs Broker .....

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13. However, proceedings continued under Rule 22 of CHALR. Subsequently, SCN dt. 27.9.2003 was issued for revocation of licence and on receipt of the Inquiry Officer Report from the Inquiry Officer and following the principles of natural justice, the adjudicating authority revoked the licence only for a period upto 31.7.2014 and also forfeited the security deposit in full. The adjudicating authority also cautioned the appellant to conduct his business in future in strict compliance with obligati .....

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re of supervision of their employee. He submits that the adjudicating authority also has clearly held that the act of employee is only for the personal gain where the appellant is not at all involved. The act of employee is beyond the appellant's control. He also submits that Customs have not initiated any proceedings against the exporter for any contravention of export of goods. In the SCN, it was stated that there is no violation in the Customs procedure and the export of goods was in orde .....

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36 (Tri.-Bang.) (3) Worldwide Cargo Movers Vs CC Mumbai 2006 (202) ELT 729 (Tri.-Mumbai) (4) Falcon Air Cargo Travel Pvt. Ltd. Vs UOI 2002 (140) ELT 8 (Del.) 4. On the other hand, Ld. A.R for Revenue reiterated the findings of the adjudicating authority and submits that CHA cannot be absolved from the misconduct or forgery committed by the employee. Therefore, the adjudicating authority rightly invoked CHALR regulation for revoking the licence. 5. We have carefully considered the submissions of .....

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ima facie the allegation mentioned at Para 8 that the CHA failed to supervise conduct of his employee, is found to be true. However, it is also seen that the CHA is operating in five locations in which a large number of people are employed; that the CHA is operating without any adverse notice against them for the past twenty three years; that they have helped in contribution of over ₹ 100 Crores of foreign exchange per year to the Govt. of India, through their business operations; that bas .....

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CHA during the personal hearing and the, written submissions dt. 15.05.2013 and taking into account the decision taken by the Division Bench of Hon'ble Delhi High Court in the case of M/s. Falcon Air Cargo and Travels (P) Ltd. vs Union of India, reported in 2002(140) EL.T. 8 (Del.), in which the Hon'ble Court observed that punishment has to be proportionate to the offence, suspension of the CHA in all 5 locations, where the CHA is operating, will not be commensurate with the offence, I .....

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1984 (now Regulation 20(2) of the CHALR, 2004) is not justified. It is evident from the above order that the Commissioner of Customs was satisfied on the bonafide of the appellants and their performance and relied Tribunal decisions. Further, we find from the SCN dt. 27.9.2003 at para 13.4 that the limited allegation is only the act of forgery committed by employee for personal gain and at para 13.5 of SCN the department accepted that there is no violation committed under Customs Act except proc .....

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committed by the employee. In spite of the above findings, the adjudicating authoritychoose to agree with the I.O report and revoked the Licence without any basis. This being the facts of the case, there is no justification for ordering extreme penal action of revocation of licence. 8. In this regard, we find several Tribunal's decisions consistently held that the CHA cannot be held liable for the acts of employee and set aside the revocation of Licence. The important Tribunal decisions are .....

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under :- 12. Learned Senior Standing Counsel for the Customs has stressed that the infraction in this case is not a routine matter, but rather, illegal smuggling of narcotics by the G card users. However, given the factual finding that the CHA was not aware of the misuse of the G cards (and thus, also unaware of the contents being smuggled), no additional blame can be heaped upon the CHA on that count alone. Rather, the only proved infraction on record is of the issuance of G cards to non-emplo .....

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Authorities and the CHA is to be taken lightly, or that violations of the Cl-IA Regulations should not be dealt with sternly. A penalty must be imposed. At the same time, the penalty must - as in any ordered system - be proportional to the violation. Just as the law abhors impunity for infractions, it cautions against a disproportionate penalty. Neither extreme is to be encouraged. In this case, in view of the absence of any mens rea , the violation concerns the provision of G cards to two indi .....

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