2013 (12) TMI 988 - AT - Customs

Imposition of penalty - Knowledge about veracity of the certificate submitted by G Card applicant - Held that - appellant was penalised without bringing out his active involvement contributing to the questionable educational qualification of G Card applicant. There is no circumstance brought out by the impugned order nor any cogent evidence exists to suggest that the appellant had active involvement in the allegation of no genuine certificate produced by G Card applicant. No mala fide of the appellant has been brought to record in clear terms. Furthermore, the proceedings has been based on foundation of Rule 19(8) of Customs House Agent Licensing Regulations, 2004 (hereinafter referred to as Regulations ). Reading of Regulation 19(8) shows that supervision of CHA is necessity of law to ensure proper conduct of any of the employee involved in transaction of business as agent. This sub-rule is based on the principle that agent binds his principal for all acts done by agent if those are within the knowledge of the principal. It is also prescription of sub-rule (8) that mis-conduct of the employee should have direct nexus to the transaction of business. The sub-rule operates on a different field for which show cause notice appears to be mis-conceived for which order passed by the learned Commissioner (Appeals) is set aside - Decided in favour of Appellant.

Summary

Issues:
1. Appellant's lack of knowledge regarding the genuineness of a certificate submitted by an employee.
2. Forfeiture of security amount by the appellant.
3. Allegations of the appellant's active involvement in the questionable educational qualification of an employee.
4. Interpretation of Rule 19(8) of Customs House Agent Licensing Regulations, 2004.

Analysis:

1. The appellant argued that they had no knowledge about the authenticity of a certificate submitted by an employee who had previously worked for them. The employee in question had served multiple employers, including the appellant, and left their employment before the certificate was questioned. The appellant contended that it was beyond their control to verify the educational qualification certificate of the employee. The appellant sought relief from the forfeiture of a security amounting to Rs. 20,000 based on these circumstances.

2. The representative for the Revenue supported the order penalizing the appellant, as passed by the learned Commissioner. However, upon hearing both sides and examining the relevant documents, the Tribunal found it surprising that the appellant was penalized without clear evidence of their active involvement in the employee's questionable educational qualification. The Tribunal noted the absence of any indication of mala fide on the part of the appellant and questioned the basis for penalizing them.

3. The Tribunal highlighted the importance of Rule 19(8) of the Customs House Agent Licensing Regulations, 2004, which mandates the supervision of Customs House Agents (CHAs) to ensure the proper conduct of their employees involved in business transactions. The rule establishes that an agent binds the principal for acts done by the agent within the principal's knowledge. It also requires that any misconduct by an employee must have a direct connection to the business transaction. In this case, the Tribunal found that the show cause notice and subsequent order were mis-conceived, as there was no evidence of the appellant's active involvement in the employee's actions related to the business transaction. Therefore, the Tribunal set aside the order passed by the learned Commissioner and allowed the appeal.

4. In conclusion, the Tribunal's analysis focused on the lack of evidence implicating the appellant in the employee's misconduct, the necessity of establishing a direct nexus between the employee's actions and the business transaction, and the misinterpretation of Rule 19(8) in penalizing the appellant. The Tribunal's decision to set aside the order and allow the appeal was based on these key legal considerations.