2009 (9) TMI 759 - AT - Customs

Suspension of CHA licence - the exporter was found to be non-existent in respect of three shipping bills filed by them - Held that - the decisions of Hon ble Bombay High Court, under whose jurisdiction this Tribunal is functioning, is relevant and in the case of CC v. National Shipping Agency 2008 (1) TMI 400 - HIGH COURT OF JUDICATURE AT BOMBAY , the Hon ble High Court held that the issue of suspension order on 30-10-2006 for violation committed in the year 2005 indicates that there is no emergency which required licence to be suspended - The facts in this case are similar to the facts considered by the Hon ble High Court - appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to suspension of CHA license due to non-existent exporter, misdeclaration of drawback amount, jurisdiction of Commissioner to suspend license, requirement of physical verification by CHA, applicability of previous tribunal and high court decisions, proportionality of punishment, timing of suspension order, relevance of Bombay High Court decision.

Analysis:
1. The appellants contested the suspension of their CHA license based on the non-existence of the exporter and the alleged misdeclaration of drawback amount. The Commissioner found that the CHA firm's proprietor admitted to not physically verifying the exporter's genuineness during the shipping bill filing process. The appellants argued that the Commissioner lacked the authority to suspend a non-existent license and cited tribunal decisions supporting CHAs not needing physical verification of exporters.

2. The Revenue representative referred to tribunal orders upholding suspension orders for similar cases and highlighted a report by DRI implicating multiple CHAs in similar transactions involving fictitious exporters and ineligible drawback claims. Additionally, the Revenue cited a Delhi High Court decision supporting penalization of CHAs for misdeclaration, even if not explicitly their duty under regulations.

3. The Tribunal analyzed the submissions and found that the appellants' argument of a non-existent license was not valid under the Custom House Agents Licensing Regulation, as existing licenses were deemed valid under the new regulation. The Tribunal differentiated the present case from a previous tribunal decision regarding the Commissioner's jurisdiction to withdraw permission, emphasizing that no such permission was relevant in this case. The Tribunal also considered the practical challenges of physically verifying all exporters and importers due to the vast geographical scope of trade.

4. The Tribunal dismissed the relevance of previous decisions cited by the Revenue, emphasizing that those decisions did not consider the aspect that CHAs need not physically verify exporters. Regarding the Delhi High Court decision, the Tribunal noted that while CHAs could be penalized for misdeclaration, the punishment should be proportionate to the offense, and the current case only dealt with suspension pending due process. The Tribunal also referenced a Bombay High Court decision indicating that suspension should not be imposed without urgency, leading to the conclusion that the suspension in this case was no longer justified.

5. Consequently, the Tribunal allowed the appeal, providing consequential relief to the appellant, indicating that the suspension was no longer warranted. The Tribunal clarified that its decision did not prejudge the CHA's liability for punishment under the CHA Licensing Regulations post due enquiry as per the law.