2011 (4) TMI 1131 - AT - Customs

CHA - whether CHA is responsible for all acts & omissions of their employee in the transaction of business as an agent - only allegation is that he produced a false 12th pass certificate on the basis of which the appellant took him in his employment and H-Card was issued to him by the customs Held that - just for production of false 12th pass certificate by his employee, the order of forfeiture of the security to the extent of Rs. 55,000/- does not prima facie appear to be correct. The impugned order is, therefore, stayed. Stay application is allowed

Summary

Issues:
1. Liability of Customs House Agent for employee's misconduct.
2. Forfeiture of security deposit due to employee's actions.

Analysis:
1. The case involved the liability of a Customs House Agent (CHA) for the actions of an employee who presented a bogus 12th pass certificate. The employee, Shri Yogesh Kumar Giri, was issued an H-Card based on this certificate, granting access to the Customs Area. Upon discovery of the falsified certificate, the H-Card was revoked, and a show cause notice was issued to the CHA for being responsible under Regulation 19(8) of CHA Regulations, 2004. The Commissioner ordered the forfeiture of Rs. 55,000 out of the security deposit of Rs. 75,000, citing the CHA's failure to supervise the employee adequately as required by the regulations.

2. The appellant, represented by Shri Mohan Lal, argued that they promptly terminated the employee's services upon learning of the certificate's falsity. They contended that no mis-conduct occurred during the employee's tenure and emphasized that no penalties or license suspension/cancellation proceedings were initiated against them. The appellant sought a stay on the forfeiture order, asserting that it lacked legal backing.

3. The Sr. Departmental Representative, Shri R.K. Gupta, supported the Commissioner's decision, stating that the CHA failed to verify the authenticity of the employee's educational certificate, justifying the forfeiture of the security deposit.

4. Upon review, the Tribunal noted that as per Regulation 19(8) of CHALR, 2004, a CHA is accountable for the actions of their employees in business transactions. However, since there was no allegation of misconduct against the employee in conducting business, and no penalties or disciplinary actions were imposed on the CHA, the forfeiture of security deposit solely based on the falsified certificate seemed unjustified. Consequently, the Tribunal granted a stay on the forfeiture order, deeming it prima facie incorrect due to the lack of legal basis and absence of punitive measures against the CHA.

In conclusion, the Tribunal upheld the appellant's plea, staying the order of forfeiture of the security deposit. The judgment emphasized the necessity of compliance with regulations by CHAs but also highlighted the importance of proportional and justified penalties in cases of employee misconduct to maintain fairness and legality in such matters.