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M/s Ajay Clearing Enterprise Versus Commissioner of Customs (General)

2016 (4) TMI 230 - BOMBAY HIGH COURT

Imposition of penalty - Revocation of CHA Licence - relying upon the alleged report of the enquiry submitted after the lapse of more than four years of the initiation of the enquiry - Banned goods exported as misdeclared - Contravention of Regulation 13(a) of CHALR, 2004 - Non-obtainance of proper authorization from the exporter - Held that:- there is no advertence in the Tribunal's argument that a period from June to November, 2008 for conduct of the enquiry and submission of the report in June .....

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n the business as a Customs House Agent and was also obtaining renewal of the licence which expired by efflux of time. Thus when the licence was suspended on 29th February, 2008, it was still in force. If the enquiry was continuing and the period of the licence expired allegedly by efflux of time during such enquiry, then, there is no explanation forthcoming as to why the licence came to be renewed. - Once the facts are so glaring, the lapse on the part of the appellant was serious and it a .....

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is charge and for the same the penalty that he has suffered of loss of licence as a Customs House Agent from 28th March, 2013, till today should be sufficient. Further, the forfeiture of security deposit in addition can also be ordered. - Decided partly in favour of appellant - Customs Appeal No. 17 of 2015 - Dated:- 28-3-2016 - S. C. Dharmadhikari And G. S. Kulkarni, JJ. For the Petitioner : Mr Prakash D Shah & Mr Jas Sanghvi For the Respondent : Mr S P Bharti ORDER P. C. 1. Having heard bo .....

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he case, the enquiry report is vitiated by a gross delay of more than 4 years from the commencement of the enquiry? (3) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in holding that the findings recorded by it in its earlier order dated 29.02.2008 is not binding on it in the present proceedings? 2. This appeal of the assessee is directed against the order passed by the Customs Excise & Service Tax Appellate Tribunal, Western Zonal Bench dated 29th Octob .....

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ts in respect of an export transaction vide Shipping Bill No.4339055 dated 2nd June, 2006, wherein the goods under export were declared as "furniture wood". On examination, it was found that the goods were, in fact, red sanders wood, an item banned for export. The appellant had filed a shipping bill on behalf of the exporter M/s. Angel Impex by declaring the goods under export as wood furniture valued at ₹ 1,26,927.60. On examination of the consignment, the goods were found to be .....

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), 13(d) and 13(e) of the Customs House Agents Licencing Regulations, 2004 (for short "the Regulations"). 5. Initially there was a suspension of this licence, but it is common ground that this suspension order was set aside by the Tribunal on 29th February, 2008. 6. Thus, the licence stood restored after the suspension was set aside following the Tribunal's order, but there is no explanation forthcoming as to why when the enquiry proceedings commenced on 19th November, 2008, but th .....

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7. The Commissioner's order-in-original dated 28th March, 2013, proceeds on the footing that though the Enquiry Officer may not have followed the principles of natural justice, that error on his part does not vitiate the ultimate conclusions and, in any event, the Commissioner would grant full opportunity to the appellant. It is based on that finding that on 28th March, 2013, the order-in-original was passed by the Commissioner of Customs and he ordered revocation of the licence with immedia .....

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there was a suspension and which was revoked but with full liberty to hold an enquiry, then, the enquiry should have been held and concluded expeditiously. The delay of nearly four years in concluding and submitting a report of that enquiry vitiates the exercise of power and prejudicially affects the appellant. Mr. Shah would submit that during the pendency of the enquiry, the licence expired by efflux of time but unmindful of the enquiry, the same was renewed. That was renewed simply because t .....

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feiture of security deposit. That is how the appellant intends to close the chapter. The Court may take a lenient view of the matter for there are no other lapses, deficiencies or breaches of the Regulations on the part of the appellant, save and except the noticed one. 10. Mr. Shah would submit that there is no question of the Commissioner, who is a Disciplinary Authority, allegedly complying with the principles of natural justice and condoning serious defect in the enquiry. Such a defect of no .....

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he administrative and other difficulties of the Enquiry Officer. Hence it cannot be said that the principles of natural justice are violated or that the resultant prejudice is such that the enquiry proceedings must fall to the ground. In such circumstances, Mr. Bharti would submit that the appeal be dismissed. 12. With the assistance of both advocates, we have perused the order passed by the Tribunal and all other annexures in the paper-book. The Tribunal specifically notes the argument of the a .....

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r charges had no basis. Secondly, there was an argument raised specifically that revocation of the licence for contravention of Regulation 13(a) is a penalty/punishment disproportionate to the alleged lapses. A third argument was noted that the enquiry proceedings were not conducted properly and the appellant was not given adequate opportunity to make submissions. 13. At page 36 in paragraph 5.1 the Tribunal purports to deal with the enquiry proceedings and the defect therein. The report, accord .....

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nd that the observations therein are made prior to the conduct of the enquiry proceedings. The enquiry proceedings, on the own showing of the Tribunal, were conducted during June to November, 2008 and a report submitted in June, 2013. 15. Thus, the Tribunal may not be influenced by its own order though it is a speaking one, but passed at the stage of suspension. We do not find any advertence by the Tribunal to the argument that a period from June to November, 2008 for conduct of the enquiry and .....

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he petitioner was merrily carrying on the business as a Customs House Agent and was also obtaining renewal of the licence which expired by efflux of time. Mr. Bharti does not dispute that such a licence is issued initially for a period of five years and renewable by efflux of time. Thus when the licence was suspended on 29th February, 2008, it was still in force. If the enquiry was continuing and the period of the licence expired allegedly by efflux of time during such enquiry, then, there is no .....

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e to any independent conclusion as to how the charge stands proved. 16. In the order of the Commissioner as well, we do not find any reference being made to the aspect of delay in enquiry or the renewal of the Customs House Agent licence. Thus, the Customs House Agent never met the exporter but was dealing with an intermediary. It is a lapse on his part of not being acquainted with the exporter, but dealing with one M/s. Max Shipping and Baburao Chinta. If failure to exercise due diligence and l .....

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