2015 (4) TMI 27 - AT - Customs

Revocation of CHA License - Clearance of misdeclared goods - Difference of opinion - Majority order - Held that - As regards the charges of contravention of Regulations 13(a) and 13(d), both the charges arise from a finding in the order dated 26-11-2005 about alleged mis-declaration of imported goods by the importers mentioned therein wherein the appellant CHA had filed the bills of entry and one of the employees of the CHA Mr. Dhirubhai Shah was found involved in the alleged mis-declaration. Surprisingly, the CHA was not made a party to the said adjudication proceedings. This is quite strange. If the CHA was a party to the transaction and a statement had been recorded to that effect, show cause notice should have been issued to the CHA for various omissions/commissions. This omission on the part of the department in incorporation of the CHA in the alleged transactions, weakens substantially the case of the department, in spite of the fact separate proceedings can be initiated against the CHA under the CHALR. During the arguments, I had asked the DR to produce printouts from the EDI system of the Department of the said Bills of Entry so that it could be verified whether it was the appellant CHA who had attended to the clearance work in respect of the consignments covered by the bills of entry and whether the importer had also signed the said bills of entry affirming the declarations made therein. In spite of sufficient time given, the DR could not produce the print outs. If the importers had signed the said bills of entry, then there was no requirement of producing authorizations separately by the CHA. Further from the records, it is seen that the CHA had in fact produced copies of the authorization letters from the importers. However, the adjudicating authority rejected the said evidence only on the specious ground that the same does not inspite confidence since they have been produced very late. I find the reasoning of the adjudicating authority quite absurd and irrational. When a documentary evidence is produced, even if belatedly, if the same has to be rejected, cogent reasons have to be given and rejection cannot be based on the subjective feeling of the adjudicating authority. In these circumstances, the benefit of doubt certainly has to be extended to the appellant. Therefore, I conclude that contravention of Regulation 13(a) of not obtaining authorization from the importers by the CHA has not been established beyond any reasonable doubt. In one case, Sri. Shah was imposed with a penalty of ₹ 20 lakhs for his alleged involvement in mis-declaration of imported goods leading to evasion of duty vide order dated 26-11-2005. Therefore, there is sufficient evidence available on record to prove this charge against the appellant. However, for a contravention of Regulation 19(8) alone, revocation of CHA licence is not warranted and the punishment suffered by the appellant of not being able to operate as a CHA for the last two years is sufficient. - revocation of the CHA licence is not warranted in the facts and circumstances of the case and the punishment suffered of not being able to operate as a CHA for the last two years is sufficient. - Decided in favour of appellant.

Summary

Issues Involved:
1. Revocation of CHA Licence under Regulation 12 of CHALR, 2004.
2. Violation of Regulation 13(a) of CHALR, 2004.
3. Violation of Regulation 13(d) of CHALR, 2004.
4. Violation of Regulation 19(8) of CHALR, 2004.
5. Adequacy of punishment.

Detailed Analysis:

1. Revocation of CHA Licence under Regulation 12 of CHALR, 2004:
The appellant's CHA licence was revoked based on the allegation that it was sub-let to Shri Dhirubhai Shah for Rs. 5,000 per month. The appellant contended that the statement by Shri Dhirubhai Shah was given under duress and was retracted within 24 hours. The appellant provided salary certificates, Books of Accounts, and Income Tax Returns to show that Shri Dhirubhai Shah was an employee. The tribunal found that the Revenue did not provide sufficient evidence to counter these documents. Therefore, the charge under Regulation 12 was not proven.

2. Violation of Regulation 13(a) of CHALR, 2004:
The appellant argued that all relevant documents, including import registers, were seized by DRI and not returned, thus they could not produce authorization letters from importers. The tribunal agreed that the Revenue could not benefit from its own failure to produce seized documents. Therefore, the charge under Regulation 13(a) was not proven.

3. Violation of Regulation 13(d) of CHALR, 2004:
Since the charge under Regulation 13(a) was not proven, the consequent charge under Regulation 13(d) was also deemed unproven by the tribunal.

4. Violation of Regulation 19(8) of CHALR, 2004:
The appellant provided evidence that Shri Dhirubhai Shah was an employee and under their control. The tribunal noted that the appellant was not made a party in the customs proceedings and the penalty on Shri Dhirubhai Shah was stayed. Thus, the charge under Regulation 19(8) was also not proven.

Separate Judgment by Member (Technical):
The Member (Technical) agreed with the findings on Regulation 12 but differed on Regulations 13(a), 13(d), and 19(8). He found that:
- The appellant did not provide sufficient evidence of authorization letters.
- The addresses of importers were fictitious.
- The appellant failed to supervise their employee effectively.
Thus, he concluded that the charges under Regulations 13(a), 13(d), and 19(8) were proven and supported the revocation of the CHA licence.

Opinion of the Third Member:
The Third Member agreed with the Member (Judicial) that the charges under Regulations 13(a) and 13(d) were not proven. However, he found some substance in the charge under Regulation 19(8) but deemed the revocation of the CHA licence as excessive punishment. He opined that the punishment of not operating as a CHA for two years was sufficient.

Majority Order:
The majority held that the revocation of the CHA licence was not warranted. The punishment of being unable to operate as a CHA for two years was deemed sufficient. The appeal was disposed of accordingly.