2011 (6) TMI 534 - AT - Customs

CHA licence - CHA licence was suspended on 19-7-2010. A post-decisional hearing was given on 11-8-2010 Held that - CHA M/s. Shiva Logistics Pvt. Ltd. have violated the Regulation 12 and the relevant provisions of CHALR, 2004 by lending their CHA licence to unauthorised persons for monetary consideration even without knowing the actual export, which is a mandatory condition of Regulation 12 of CHALR, 2004, which stipulates that every licence granted or renewed under these regulations shall be deemed to have been granted or renewed in favour of the licencee, and no license shall be sold or otherwise transferred, Appellant is also directed not to take on any work at any other customs location. Suspension order is modified accordingly. Stay petition and appeal itself are also disposed of

Issues:
1. Suspension of Custom House Agent license.
2. Allegations of violations of CHALR, 2004.
3. Responsibility of the Appellant for actions of employees.
4. Compliance with Circular No. 9/2010 dated 8-4-2010.
5. Decision on restoration of license and conditions for functioning.

Issue 1: Suspension of Custom House Agent license:
The Appellant, a Custom House Agent, had their license suspended on 19-7-2010, which was confirmed by the Commissioner of Customs on 25-10-2010. The Appellant filed an appeal against this suspension, citing lack of a final notice as per Board's Circular 9/2010 dated 8-4-2010. The Appellant sought restoration of the license until the matter was settled, emphasizing that the employees responsible for the alleged violations in Mumbai were terminated promptly upon discovery.

Issue 2: Allegations of violations of CHALR, 2004:
The impugned order highlighted that the Appellant, through its Mumbai office, violated Regulation 12 and relevant provisions of CHALR, 2004 by lending the CHA license to unauthorized persons for monetary gain without knowing the actual exports. The Appellant was accused of colluding with individuals to clear consignments of overvalued exports, causing significant losses to the government exchequer. The judgment emphasized the mandatory conditions of Regulation 12 and the misuse of the license for unauthorized activities.

Issue 3: Responsibility of the Appellant for actions of employees:
The Departmental Representative argued that the Appellant is accountable for the actions of its employees, stressing that failure to monitor employees effectively results in losses to the government. The contention was that if the Appellant could not supervise its employees adequately, allowing the Appellant to function as a Custom House Agent (CHA) would not be justified, especially during ongoing investigations into revenue losses.

Issue 4: Compliance with Circular No. 9/2010 dated 8-4-2010:
The judgment noted that the Board's Circular No. 9/2010 mandated a specific time frame for completing proceedings against CHAs, requiring the issuance of a final notice within nine months from the incident report date. Despite this stipulation, there was no indication of when the Revenue would issue the final notice in this case. The tribunal considered this delay and directed the Appellant to be allowed to function in Delhi as before, with restrictions in Mumbai for specific corporate clients until the matter was resolved.

Issue 5: Decision on restoration of license and conditions for functioning:
Considering the lapse in issuing the final notice and the impact on the Appellant's operations, the tribunal modified the suspension order. It permitted the Appellant to resume operations in Delhi as previously conducted but restricted business in Mumbai to pre-suspension corporate clients only. The Appellant was directed not to engage in new business with importers or exporters in Mumbai until a final decision was reached. The Appellant was instructed to submit a list of approved corporate clients to the Commissioner of Customs for scrutiny and approval.

This judgment addresses the suspension of a Custom House Agent license, allegations of CHALR, 2004 violations, the Appellant's responsibility for employee actions, compliance with Circular No. 9/2010, and the decision on restoring the license with specific operational conditions. The tribunal acknowledged the regulatory framework, emphasized accountability for license misuse, and balanced the need for revenue protection with the Appellant's right to operate within defined parameters pending resolution of the case.

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