2010 (2) TMI 1024 - AT - Customs

Summary

Issues Involved:
1. Revocation of CHA Licence under Regulation 20 of CHALR, 2004.
2. Mis-declaration of export goods and inflated FOB value to avail undue DEPB credit.
3. Adequacy of caution/diligence exercised by the CHA.
4. Proportionality of punishment and deprivation of livelihood.
5. Admissibility of statements recorded u/s 108 of the Customs Act in CHALR proceedings.

Summary:

1. Revocation of CHA Licence under Regulation 20 of CHALR, 2004:
The appeal was filed by M/s. H.B. Cargo Services against the Order-in-Original revoking their CHA licence. The Commissioner found that the CHA had not exercised adequate caution/diligence by signing blank shipping bills without knowing the exporter or the nature of the goods, thus failing to comply with Regulation 13 of CHALR, 2004. Consequently, the Commissioner revoked the licence and forfeited the security furnished.

2. Mis-declaration of export goods and inflated FOB value to avail undue DEPB credit:
The goods declared as 'ladies nightwear' were found to be rags and cheap clothes, with an inflated FOB value to avail inadmissible DEPB credit. The Commissioner confiscated the goods, denied the DEPB credit, and imposed penalties u/s 114 of the Customs Act, 1962.

3. Adequacy of caution/diligence exercised by the CHA:
The Inquiry Officer found that the CHA had sold 10 signed blank shipping bills to M/s. Transasia Shipping, which facilitated the attempt to illegally export the consignment. The Tribunal noted that the CHA's role in abetting the illicit export was established, but there was no active complicity found against the CHA.

4. Proportionality of punishment and deprivation of livelihood:
The Tribunal considered various case laws emphasizing that punishment should be commensurate with the offence and should consider the right to livelihood u/s Article 19(1)(g) of the Constitution. The Tribunal found that the CHA had an unblemished record and was in financial difficulty due to the suspension of its licence. The Tribunal concluded that the revocation of the licence was not justified given the circumstances and the minor infractions involved.

5. Admissibility of statements recorded u/s 108 of the Customs Act in CHALR proceedings:
The Tribunal acknowledged the judicial authorities relied on by the Revenue, which held that statements recorded u/s 108 of the Act were admissible in CHALR proceedings. However, the Tribunal found that the Inquiry Officer's conclusion regarding the appellant's contribution to the attempted fraud was incorrect.

Conclusion:
The Tribunal vacated the revocation of the CHA licence, allowing the appeal and restoring the licence. The Tribunal emphasized the importance of proportionality in punishment and the right to livelihood, considering the specific facts and circumstances of the case.