TMI Blog2015 (7) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act means an offence pertaining to the case, covered by the Settlement. Even the power 'Waiver' is expressly conferred by Legislative to the Settlement Commission - Furthermore, as per Section 127-J of the Customs Act, 1962, 'every order' of settlement passed under Sub-Section 5 of Section 127-C shall be conclusive as to the matters stated therein and no matter covered by such order shall save as otherwise provided in this chapter (Chapter, 14-A) be reopened in any proceeding under this Act or under any other law for the time being in force - Also it cannot be forgotten that as per Section 127-M of the Customs Act, 1962 the proceedings before the Settlement Commission shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 and for the purposes of Section 196 of Indian Penal Code (45 of 1860). In the instant case, there is no two opinion of the fact that the importer was guilty of under valuation etc., and he was let out with the nominal fine, but the punishment of revocation its license and the forfeiture of security deposit of the Respondent/Petitioner, in the considered opinion of this Court is the excessive, arbitrary and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal charges, etc., which were not included in the original import value of the goods. The remittances were also made by him including service charges from India to Singapore through banking channels. His remittance transactions are thus licit transactions. Therefore, it is contended that when the importer has now got a clean chit from the settlement Commission, the petitioner who is only a Broker, cannot be penalised. 27. In paragraphs 25 and 26 of the Impugned Order, the first respondent has dealt with this aspect. The first respondent has rejected this contention on the ground that the Settlement Commission settled the case upon confirmation of additional amount of Customs Duty, interest and nominal fine and penalty based upon the true and the full disclosure. Therefore, the first respondent has concluded that the importer was guilty of undervaluation and that consequently, the petitioner cannot escape liability. 28. But, what the first respondent has failed to take note of, is the fact that the revocation of licence now ordered by the first respondent, throws the petitioner out of business once and for all and deprives them of their very livelihood. Once the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicitor General of India for the Appellants contends that the Learned Single Judge had failed to appreciate the Law that the action taken by the 1st Appellant/Commissioner of Customs, Tuticorin in issuing Show Cause Notice dated 18.05.2010 followed by the Order-in-Original dated 31.01.2011 issued to importer M/s I-Tech Imports and Exports, Chennai under the Customs Act, 1962 imposing penalty under Section 112(a) under Section 114AA as an Adjudicating Authority appointed under the Customs Act, 1962 and not as a 'Recovery Authority' under the CHALR, 2004. 9.The Learned Additional Solicitor General of India for the Appellants submits that the Learned Single Judge had failed to appreciate that the action initiated by the Appellant as a 'Regulation Authority' under Regulation 13(b), 13(d), 13(e) of CHALR, 2004 dated 12.11.2012 was perfectly justified within a period of limitation being in accordance with the CHALR, 2004 which should not have been quashed. 10.The Learned Additional Solicitor General of India for the Appellants strenuously contends that the Learned Single Judge ignored the Law that when the Regulation 22(1) of the CHALR, 2004 specifically employs th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated 05.12 had informed the Tuticorin Customs that the Respondent/Petitioner had filled a Bill of Entry No.473263 dated 16.11.2009 on behalf of their client M/s I-Tech Imports and Exports for the import of goods declared as plastic injection moulding machineries. Further, from the DRI Report, it came to light that the country of origin was mis-declared to evade of Anti Dumping Duty as per Notification No.47/2009 (CUS) dated 12.05.2009 and also undervalued the machineries imported. 16.Continuing further, it was evident from the DRI report that the importer filed the Bill of Entry declaring the lower value and sold the goods for a higher value. The Petitioner/Respondent had on earlier occasion projected four Bills of Entry prior to this and which was taken up for investigation by the DRI, Chennai. 17.It comes to be known that the DRI issued Show Cause Notice dated 18.05.2010 requiring the Respondent/Petitioner to show cause to the Additional Commissioner of Customs, Tuticorin to file a reply within 30 days as to why the penalty should not be imposed on him under Section 112 (a) and 114 A of the Customs Act, 162 for acts of commission and omission. The Respondent/Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xing a date for hearing. 21.The Commissioner of Customs (Imports) finally passed an Order on 11.11.2013 Order-in-Original No.2242/2013 revoking the license issued to the Respondent/Petitioner and forfeited the 'Security Deposit', but, the documents already filed by the Respondent/Petitioner before the Department was allowed to be cleared. 22.The prime stand of the Appellants is that the Writ Petition filed by the Respondent/Petitioner is not perse maintainable because of the reason that as against the Impugned Order revoking license granted to the Customs House Agent, Appeal is provided under Section 129A (1) of the Customs Act, 1962, which lies to the Customs, Excise and Service Tax Appellate Tribunal within 90 days from the date of receipt of copy of the Order. 23.In as much as a viable effective and alternative remedy of preferring an 'Appeal' is available to the Respondent/Petitioner before the Tribunal concerned, the Writ Petition filed by the Respondent/Petitioner is not maintainable, according to the Appellants. 24.Besides the above, as against the Order passed by the Additional Commissioner of Customs, Tuticorin, the Respondent/Petitioner filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Customs had given personal hearing on 04.11.2013, which was an extended opportunity, but, the Respondent/Petitioner failed to avail the same. Also that, while responding to the personal hearing notice, the counsel for the Respondent/Petitioner had given a reply stating that the proceedings were time barred as it was not complied within 90 days and therefore sought for a reply for his earlier letters. Hence there was no violation of principles of natural justice in the present case. Added further, the remainder was issued by the Respondent/Petitioner on 11.11.2013 and on that date already the impugned order was passed and therefore it may not be considered. 28.As a matter of fact, the Respondent / Petitioner, who called for several reports and prayed for opportunity to crossexamine the witness was provided with everything and as such, there were no violation of principles of Natural Justice. 29. The Learned Additional Solicitor General of India places heavy reliance on the 1st Appellant's proceedings bearing C.No.VIII/13/18/2001-CHAL dated 06.09.2012 whereby and whereunder the copies relied upon documents were forwarded for taking action under Regulation 22 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.09 SGD 12250 SGD 27250 SGD 15000 In the above cases also the importer transferred the declared value of the machineries to the Importer's own account in Singapore through Bank of India in Form A1 and the suppressed value had been transferred to the above account in Singapore, through Bank of India, in Form A2 as technical charges. Also the CHA had declared lesser value in the above Bills of Entry despite having knowledge of actual value. The total differential duty demanded, with regard to five Bills of Entry worked out to ₹ 10.88 Lakhs, which was later paid by the importer as per the Settlement Commission's order No.13/2010 dated 30.11.2010. 04. Statements recorded from Shri.Anthonysamy, Marketing Manager of the importer company M/s I-Tec Imports Exports, Chennai Shri. Shri. Devan, Proprietor of M/s. I-Tec Imports Exports, Chennai, Shri.Ganesh, HCard holder of the CHA and Shri.J.Muruganantham, Proprietor of M/s. Esteem Industries, Chennai proved the role of CHA in filing manipulated invoices for assessment. 05.Therefore, it appears that the CHA has failed to comply with the Regulation 13 of CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Commissioner of Customs or anywhere else; (c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in subregulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, [within fifteen days from the date of receipt of a report from investigating authority, suspend the licence] of a Customs House Agent where an enquiry against such agent is pending or contemplated. (3) Where a licence is suspended under sub-regulation (2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs House Agent]. 33.Furthermore, the Regulations CHALR, 2004 does not spell out what is an ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Revenue issued by the Central Board of Excise and Customs dated 08.04.2010 wherein in Paragraph No.5, it deals with 'Suspension of Revocation against CHAs operating on 'C' Form intimation basis', for fuller and better appreciation of the subject matter in issue, the Paragraph No.5.2 is quoted as under:- Further, it is also clarified that the Commissioner of Customs at a customs station who had authorised a CHA to operate on 'C' Form intimation, should inform the details of violations to the Commissioner of Customs at the customs station from where the CHA licence was issued for such CHA, so that necessary action for suspension or revocation of CHA licence was issued for such CHA, so that necessary action for suspension or revocation of CHA licence, could be initiated by him. This would avoid duplication and ensure uniformity in adjudication of a case against a CHA in suspension or revocation proceedings by the Customs field formations. However, the Commissioner of Customs, who had authorised a CHA to operate on 'C' form intimation at a customs station, may take action in deserving cases under regulation 21 of CHALR, 2004 for prohibiting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and above the amounts mentioned in respective invoices filed by the applicant at the time of clearance of imported goods which has been fully accepted by the applicant. 40.It is to be borne in mind that Section 127-H of the Customs Act, 1962 confers power on the Settlement Commission to grant immunity from prosecution - for any offence under this Act or the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and such immunity may be either in whole or in part from the imposition of a penalty, fine and interest under the Customs act, 1962, in regard to the case covered by the Settlement. 41.Suffice it for this Court to point out that granting immunity is itself within the domain and subjective discretion of the Settlement Commission depending upon various factors mentioned in Section 127-H of the Customs Act, 1962. 42.To put it precisely, the offence discussed in Section 127-H of the Act means an offence pertaining to the case, covered by the Settlement. Even the power 'Waiver' is expressly conferred by Legislative to the Settlement Commission. Furthermore, as per Section 127-J of the Customs Act, 1962, 'every order' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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