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2011 (3) TMI 292 - AT - CustomsSuspension of CHA licence - It is true that there is no prescribed format for an authorization under Regulation 13(a) - In the normal course of importation and clearance of goods, the importer would supply the import documents such as Import General Manifest, Invoice, Packing List etc. to his CHA with a covering letter wherein the CHA is authorized to file bill of entry and attend to all other requirements for clearance of the goods and also the particulars of the import documents are mentioned - Once the goods are cleared upon completion of Customs formalities and out-of-Customs-charge order under Section 47 of the Customs Act is obtained by the CHA and delivered to his client, there is nothing else to be done by the CHA. It is not the CHA s obligation under the CHALR to arrange post-clearance operations like transportation of the goods for his client Regarding breach of Regulation 13(k) - Held that this charge not proved after noting that, during the course of inquiry, the CHA produced a zerox copy of the register of import which showed the documents to be accounted for - Decided in the favour of the assessee
Issues Involved:
1. Revocation of CHA Licence 2. Violation of Regulation 12 of CHALR 3. Violation of Regulation 13(a) of CHALR 4. Violation of Regulation 13(d) of CHALR 5. Violation of Regulation 13(k) of CHALR Issue-wise Detailed Analysis: 1. Revocation of CHA Licence: The appellant, M/s. Sainath Clearing Agency, had their CHA licence revoked and security deposit forfeited under Regulation 22(7) of the Customs House Agents Licensing Regulations, 2004 (CHALR). The licence was initially suspended on 4.5.2005 due to alleged involvement in misuse of the Advance Licence Scheme by M/s. Tony Enterprises. The suspension was later set aside by the Tribunal, allowing the Commissioner to proceed under appropriate CHALR provisions. Subsequently, the licence was revoked by the Commissioner after an enquiry. 2. Violation of Regulation 12 of CHALR: The Tribunal had previously held that Shri Dilip Shah and Shri Shantaram Dongre were employees of the CHA, holding Customs House passes on behalf of the CHA. The inquiry officer, relying on this finding, concluded that the CHA licence was not sold or transferred, thus no violation of Regulation 12 occurred. The Commissioner's disagreement with this finding was based on a misinterpretation of the Tribunal's order, which did not restrict the Commissioner from proceeding under Regulation 22. Therefore, Charge I was not sustained. 3. Violation of Regulation 13(a) of CHALR: Regulation 13(a) mandates obtaining authorization from clients. The appellant argued that no prescribed proforma existed and the importer's signature on the bill of entry sufficed. However, the Tribunal noted the absence of any written authorization from M/s. Tony Enterprises and upheld that Regulation 13(a) requires written authorization. The Tribunal referenced Jasjeet Singh Marwaha's case, affirming that statements recorded under Section 108 of the Customs Act are admissible if voluntary and truthful. Consequently, Charge II was sustained. 4. Violation of Regulation 13(d) of CHALR: The appellant contended that they had no direct involvement in advising M/s. Tony Enterprises, whose consignment was handled by employees. The Tribunal found that post-clearance activities, such as transportation arranged by Shri Shantaram Dongre, were beyond the CHA's obligations under CHALR. Therefore, the CHA could not be held liable for post-clearance actions of their employee. Thus, Charge III was not sustained. 5. Violation of Regulation 13(k) of CHALR: The inquiry officer initially found that the CHA maintained records as required. However, the Commissioner disagreed, noting that the CHA's employee admitted to not keeping copies of the relevant documents and the original register of import was not produced. The Tribunal upheld the Commissioner's finding, concluding that Charge IV was sustained. Conclusion: Out of the four charges, two were sustained (Charges II and IV). The Tribunal concluded that the CHA had already suffered due to the licence revocation for over three years. Therefore, the revocation of the licence was set aside, but the forfeiture of the security deposit was sustained for breaches of Regulations 13(a) and 13(k). The appellant was allowed to resume business as a CHA subject to a fresh security deposit.
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