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2016 (6) TMI 864 - CESTAT CHENNAI

2016 (6) TMI 864 - CESTAT CHENNAI - TMI - Revocation of CHA license - period of limitation - principle of natural justice - Failure on the part of CHA to perform its duties - the allegation is that the appellant failed to obtain authorization from his clients to deal with Customs, failed to advise his clients for proper compliance of Customs Act and failed to exercise due diligence to ascertain the correctness of information required to handle the work as a CHA - Held that:- The notice which res .....

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n ten years of business and livelihood for the appellant cannot be allowed to continue. Applying the doctrine of proportionality as well as the fact that the impugned order travelled beyond the notice, we hold that both the grounds as agitated by the appellant are tenable to set aside the impugned order. - Decided in favor of CHA - C/00328/2010 - FINAL ORDER NO. 41012 / 2016 - Dated:- 13-6-2016 - SHRI D.N. PANDA, JUDICIAL MEMBER AND SHRI B. RAVICHANDRAN, TECHNICAL MEMBER For the Appellant : Shri .....

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d and resulted in various proceedings under Customs Act, 1962. The proceedings against the appellant under Customs House Agents Licensing Regulations, 2004 [CHALR, 2004] has also been initiated vide show-cause notice dated 08.06.2006. The notice alleged that the appellant failed on three counts, namely, Regulation 13(a), 13(d) and 13(e). In short, the allegation is that the appellant failed to obtain authorization from his clients to deal with Customs, failed to advise his clients for proper com .....

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and proved. The enquiry report was dated 06.10.2006. Thereafter, the learned Commissioner held a personal haring on 07.02.2008. As no final order was passed by the learned Commissioner, the appellant approached the Honble Madras High Court by way of a Writ Petition No.4342 of 2010. The Hon ble High Court noted the delay in disposal of the appellant s case and directed the learned Commissioner vide their order dated 16.04.2010 to decide the case within four weeks. The present impugned order came .....

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port cargo or connivance with the exporters to draw undue benefit. There is no evidence to show that they are beneficiary of any admitted misdemeanor by the exporter. The work is done as per the fee paid per shipping bill and no other benefit has accrued to the appellant. Further, he strongly pleaded that the show-cause notice dated 08.06.2006 is very cryptic regarding the allegation against the appellant. Whereas, the impugned order relied on various facts, which are neither indicated nor relie .....

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ication. The learned counsel relies on decision of Honble Delhi High Court in the case of Ashiana Cargo Services Vs Commissioner of Customs (I&G) reported in 2014 (302) E.L.T.161 (Del.), which was affirmed by the Honble Supreme Court in the case of Commissioner v. Ashiana Cargo Services reported in 2015 (320) E.L.T. A175 (S.C.)] to reiterate his plea that the consequences of the appellants misdemeanor, if any, resulted in his being out of business for more than ten years, which even if co .....

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d in the revocation of his license, which is legally sustainable. Regarding the delay, he submitted that considering the voluminous documents and investigation with reference to Customs Act, 1962, parallel proceedings under CHALR, 2004 got delayed. 4. We have heard both sides and examined the appeal records. 5. We are taking up the two preliminary submissions made by the learned counsel for the appellant for examination first. It is a fact that there is a delay of four years in issue of the impu .....

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ls which are not referred to in the show-cause notice. He relied on certain details as per adjudication proceedings under Customs Act, 1962.While there is no illegality per se with such reliance, the question is due notice to the appellant is required. We are unable to appreciate the findings and observations which are beyond the cryptic show-cause notice on these grounds. We note that in para 13.03 of the impugned order the original authority relies on investigations and the subsequent adjudica .....

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ble. Clearly, the adjudicating authority considered developments/purported evidences that arose three years after the proceedings were initiated and inquiry completed. This is in clear violation of principle of natural justice. 6. Considering the above two issues without even elaborately commenting specifically on the merits of the case, we find the continued revocation of the license of the appellant is not justifiable. This is supported by the finding of the Hon ble High Court of Delhi in Ashi .....

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High Court in Commissioner of Customs & Central Excise, Hyderabad-II Vs H.B. Cargo Services reported in 2011 (268) E.L.T. 448 (A.P.). The Honble High Court held in para 11 of its order as under: 11. While issuance of signed blank shipping bills would, by itself, amount to negligence on the part of the CHA, their doing so for a consideration of ₹ 150/- per shipping bill is an act of corruption. It is in this context that the proportionality of punishment imposed on the respondent, and .....

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of a rule of permissible priorities. Proportionality involves balancing test and necessity test . While the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests, and a manifest imbalance of relevant considerations, the latter (necessity test) limits infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; Wade & Forsyth: Administrative Law (2005), p. .....

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pplied, while dealing with the question of quantum of punishment, would be: would any reasonable person have imposed such punishment in like circumstances? Obviously, a reasonable person is expected to take into consideration the measure, magnitude and degree of misconduct and all other relevant circumstances, and exclude irrelevant matters before imposing punishment [Mukul Kumar Choudhuri - (2009) 15 SCC 620]. The CHALR enables both suspension and revocation of the license of a CHA for violatio .....

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