2011 (3) TMI 710 - AT - Customs

Suspension of CHA licence - They have failed to obtain the requisite authorization from the importer prior to filing the impugned bills of entry and had also failed to bring this fact to the notice of the concerned authorities of customs and have thereby violated the provisions of Regulations 13(a) and 13(d) of the CHALR, 2004 - In the absence of the documents the investigation should bring out some other evidence showing awareness or involvement of the CHA in the fraud and to indicate that the concerned Bills of Entries were indeed filed and handled by the Appellant - Board s Circular No. 9/2010, dated 8-4-2010 - There is no system of electronic signature or making sure at least that filing is done only using the user-id and password of the CHA stated to be filing the Bill of Entry - there are system defects. So there has to be collateral evidence to show that the Bills of Entries have been in fact filed by the concerned CHA - Held that department has the freedom to unearth reliable evidence showing the involvement and knowledge of the CHA in the matter of the fraud and are free to proceed against the Appellant under Regulation 20(2) of CHLAR based on such evidence - Decided in favour of the assessee

Issues:
1. Suspension of Custom House Agent (CHA) license without notice or personal hearing.
2. Allegations of involvement in fraudulent imports and duty evasion.
3. Compliance with principles of natural justice.
4. Evidence requirement for suspension of license.
5. System defects in electronic filing of Bills of Entry.
6. Legality and propriety of license suspension.

Analysis:

1. The Appellant, a licensed Custom House Agent (CHA), had their license suspended under regulation 20(2) of the Custom House Agents Licensing Regulations, 2004 (CHALR) without prior notice or personal hearing. The suspension was later confirmed after a post decisional hearing, prompting the Appellants to appeal against the order.

2. The suspension was based on allegations of involvement in fraudulent imports where mis-declared goods were imported by forging documents, resulting in significant duty evasion. The department contended that such fraudulent activities could not have occurred without the CHA's knowledge, leading to the suspension of the license.

3. The Appellant argued that they were not involved in filing the fraudulent Bills of Entries and requested evidence to support the department's claims. However, the requested documents were not provided, raising concerns about the compliance with principles of natural justice in the suspension process.

4. The Tribunal emphasized the need for evidence to indicate the CHA's involvement in the fraud before suspending their license. The absence of concrete evidence against the CHA, apart from the Bills of Entry in the computer system, highlighted the necessity for collateral evidence to substantiate the allegations.

5. System defects in the electronic filing process of Bills of Entry were noted, indicating a lack of mechanisms to verify filings by the CHA and the need for additional evidence beyond the electronic records to establish culpability in such cases.

6. Ultimately, the Tribunal found the suspension of the CHA license to be unjustified due to the lack of substantial evidence linking the CHA to the fraudulent activities. The decision to revoke the suspension was made in the interest of justice, with a reminder to the department to gather reliable evidence if they intend to pursue action against the CHA in the future under the relevant regulations.

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