2008 (6) TMI 399 - AT - Central Excise

Revocation of Customs House Agents Licence - jurisdiction - Held that - the Commissioner has sought to revoke the licence under Regulation 22 by issuing a SCN but has prohibited the appellant from conducting business in Mumbai Custom House which cannot be considered as prohibiting the agent from working in a section or more sections of the Custom House. Further prohibiting the agent from working in the Mumbai Custom House tantamounts to revocation of Licence in respect of activities in the Mumbai Custom House which cannot be done by Commissioner as he has no jurisdiction to revoke the licence, once the Licence is issued by Commissioner Banglore who has dropped such proceedings - appeal dismissed for want of jurisdiction.

Issues Involved:
1. Misdeclaration of goods to evade duty.
2. Penalty imposition on Custom House Agent (CHA) and its employee.
3. Suspension/revocation of CHA license.
4. Jurisdiction of the Commissioner in prohibiting the CHA from working in Mumbai Custom House.

Detailed Analysis:

1. Misdeclaration of Goods to Evade Duty:
The case centers around M/s. Wipro GE Medical Systems, which imported CT scanners from China. To evade higher duties on complete scanners, they described the goods as parts in the House Air Way Bills while the Master Air Way Bill described them as complete scanners. This misdeclaration aimed to project to the Revenue that only parts were being imported. The consignment was split and imported through Bangalore and Mumbai to support this claim. The appellants had previously imported similar scanners and paid duty as complete scanners. The misdeclaration was allegedly done to evade duty, leading to the issuance of show cause notices demanding differential duty. M/s. Wipro GE Medical Systems accepted the allegations and paid the differential duty via the Settlement Commission.

2. Penalty Imposition on Custom House Agent (CHA) and its Employee:
M/s. Exel India Pvt. Ltd., acting as the Custom House Agent, was penalized for aiding and abetting M/s. Wipro GE in duty evasion. Two separate show cause notices were issued by the Commissioners of Mumbai and Bangalore, resulting in penalties of Rs. 5,00,000 and Rs. 4,00,000 respectively on M/s. Exel, and additional penalties on its employee. Appeals against these penalties were filed, and the Tribunal set aside the penalties, noting that the benefit of Notification was extended to parts even though the goods were considered as complete units in subsequent imports. It was held that if M/s. Wipro GE was not guilty of misdeclaration, M/s. Exel and its employee could not be held for aiding and abetting.

3. Suspension/Revocation of CHA License:
Separate proceedings were initiated against M/s. Exel for suspending/revoking their license under CHA Regulation Rules. The charges were based on the misdeclaration in the bill of entry. An Enquiry Officer upheld the charges, and the Commissioner prohibited M/s. Exel from working in Mumbai Commissionerate under Regulation 21 of CHA Licensing Regulations, 2004. The appellant argued that once the enquiry was complete, only revocation under Regulation 22 was possible, which the Commissioner of Mumbai lacked jurisdiction to enforce as the license was issued by Commissioner Bangalore.

4. Jurisdiction of the Commissioner in Prohibiting the CHA from Working in Mumbai Custom House:
The main contention was that the Commissioner of Mumbai, by invoking Regulation 21, prohibited M/s. Exel from working in the entire Mumbai Custom House, effectively revoking their license without jurisdiction. The appellant argued that Regulation 21 was transitory and applicable only if the enquiry was incomplete. The Commissioner of Mumbai could not revoke the license issued by Commissioner Bangalore. The Tribunal noted that the penalties imposed on the CHA were set aside by the Tribunal, and the misdeclaration did not lead to any duty evasion as the parts were entitled to concessional duty. Consequently, the prohibition order was invalid due to lack of jurisdiction.

Conclusion:
The Tribunal held that the Articles of Charges against the CHA were proved but the Commissioner of Mumbai lacked jurisdiction to prohibit M/s. Exel from working in Mumbai Custom House. The appeal was allowed on jurisdictional grounds, and the prohibition order was set aside. The Tribunal emphasized that the misdeclaration was initially intended to evade duty, but subsequent legal interpretations allowed the concessional rate for parts, nullifying the intent to evade duty. The penalties imposed on the CHA were previously set aside, reinforcing the decision to allow the appeal.

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