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2016 (4) TMI 489 - CESTAT MUMBAI

2016 (4) TMI 489 - CESTAT MUMBAI - TMI - Revokation of CHA licence - Involvement of appellant CHA in the case of Fraudulent availment of Drawback on exporters in the name of IEC which were obtained on the basis of fictitious addresses at and in the name of non-existent person - Appellant charged under regulation 13 (a), 13(e) & 13(n) of CHALR, 2004 - Held that:- by applying the decision of Tribunal in the case of Baraskar Brothers Versus CC [2012 (6) TMI 466 - CESTAT, Mumbai], the impugned order .....

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he appellant herein is a CHA. On a report dated 28.07.2008 received from DRI vide letter no. DRI/MZU/E/Int-43/2006 dated 25/07/2008, informing about the involvement of appellant CHA in the case of Fraudulent availment of Drawback on exporters in the name of IEC which were obtained on the basis of fictitious addresses at and in the name of non-existent person, the CHA license of appellant was suspended. Further documents were received from the office of DRI as also the show cause notice issued to .....

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tire amount of security deposit. 3. Learned Counsel would submit that the impugned order is passed without regards to the legal provisions and the law on subject; it is discriminatory and arbitrary, illegal and mis-construed and in similar cases commissioner allowed the argument of other clearing agents. It is his submission that the 8 Drawback shipping bills were filed in June, July 2006 and after examination were allowed to be exported and the exporter received drawback directly, CHA had no ro .....

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y their regular freight forwarder M/s. Shashikant Logistic and the export documents were all found to be correct and cleared by the Customs officers and allowed shipment without any doubt being raised. It is his submission that since there was no doubt about the freight forwarder, there was no reason to doubt about the genuineness of exporters and failure of investigating authorities to trace out the exporter cannot be attributed as negligence on the part of appellant. It is also his submission .....

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upon the following case laws (i) Worldwide Cargo movers 2010 (253) E.L.T. 190 (Bom.) (ii) Shri kamakshi Agency 2001 (129) E.L.T. 29(Mad.). He would submit that Hon ble High Court of Gujarat in the case of OTA Kandala Pvt. Ltd. 2011(269) E.L.T. 457(Guj.) held that revocation of the license is an administrative action and proportionality of the punishment is permissible. He reiterates the findings of the lower authorities. 5. On consideration of the submissions made, we find that the charges again .....

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e diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage . 10.3 Article of Charge-III a. In terms of Regulation 13(n), A Custom House Agent shall ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay . It can be seen from the above reproduced articles of charges, the defense of the appellant is the documents were received from Shri .....

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he CHA had violated the provisions of regulations 13 (a), (e), (n). It is also undisputed that the exports were cleared by the Customs authorities in June and July, 2006, after examination of the very same documents on which reliance is placed to hold against the appellant. 6. In the case of Baraskar Brothers, this bench in similar set of facts held that CHA license cannot be revoked. We reproduce the relevant paragraphs. 2. The facts of the case are that it has been reported by the Directorate .....

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ey have attended to customs clearance in respect of exports of M/s. Yas Nas Exports and M/s. Aka Chem International; that the documents for the purpose of customs clearance of the firm were given to him by Shri Sitaram Shantaram Tambe, a forwarder, having a firm by the name M/s. Shashikant Logistics; that he had never met the owner/proprietor of the said firms. He admitted that necessary precaution had not been taken by their firm as a CHA to meet the exporter and to verify the genuineness at th .....

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loyees in the transaction of business as agents and be held responsible for all acts or omissions of his employees in regard to their employment. An inquiry was conducted and during the course of enquiry, it was informed that on verification of DGFT website on the internet, both the exporters were registered with JNCH. Further, the appellant also noted the Drawback account of the said two firms was also maintained at JNCH in which Drawback claim would have been credited. The Inquiry Officer foun .....

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enough to perform his duties. Thereafter, it was held that the CHA has not performed their job in a professional manner, whereas considering the lapse due to omission and commission on the part of the CHA, the CHA should be punished adequately. Therefore, their CHA licence was revoked. Aggrieved from the said order, the appellant is before us. 7. After considering the submissions made by both sides, we find that in this case the main allegation against the appellant is that they have not verifi .....

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erve that in similar set of facts in the case of Setwin Shipping Agency (supra) wherein the same charges were made against the CHA and in that case, this Tribunal has held that CHA need not to be responsible for verifying the contents of the exporter. Thereafter, this Tribunal has revoked the order of suspension of CHA licence and the said order was accepted by the Commissioner of Customs (General), Mumbai. In the case of Thawerdas Wadhoomal (supra), this Tribunal has held that CHA files shippin .....

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idence on records to point out that the CHA has not behaved prudently. But for the lapses on the part of the CHA as enumerated in the Inquiry Reports as well as in my observations after weighing defence put forth by the CHA, it is seen that no mala fide intent has been proved against the CHA and thereafter, he made operative the CHA licence after forfeiting the security deposit. In this case, it was observed by the Commissioner of Customs that the CHA have not performed their job in a professio .....

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re almost identical and in both the cases treatments given are different. The Commissioner of Customs (General) should maintain consistency in passing the orders/decisions and should not follow the policy of pick and choose. In this case, we find that the Commissioner of Customs (General) has followed the policy of pick and choose and there is no consistency in decision while dealing the same situation, thereby he revoked the CHA licence of the appellant, which cannot be permitted. In view of th .....

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