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2019 (8) TMI 1677 - AT - CustomsRevocation of CHA License - forfeiture of security deposit - direction to re-adjudicate the case within three months from the date of receipt of the order - fraudulent export of readymade garments under Duty Entitlement Pass Book (DEPB) Scheme - allegation is that the G Card Holder of the Appellant Company, had played the entire mis-chief by forging/impersonating the signature of Shri S.Das, the partner of the Appellant and dealt with the export consignment on his own accord for the clearance of export cargo at Haldia Port - HELD THAT - The G card holder of the appellant, Shri Samar Goswami, has undertaken the job of clearance of export consignment from M/s Sungrowth Exports Private Limited without the approval of the director of the appellant company. After having come to know about the mischief done by Shri Goswami, the appellant filed a police complaint on 15.10.2003, and intimated to the Customs on 17.03.2003. Thereafter, the service of Shri Goswami was also terminated by the Appellant. The department has also obtained the signature of the partner of the Appellant company, Shri S. Das, and sent for the forensic examination, so as to acertain as to whether the signature appearing on the export documents was by him or the same has been forged by the G Card holder, Shri Samar Goswami. The forensic report is only an opinion for the similarities, like straight nature of commencement of the initial oblique/of S , acute angularity in the middle, compressed nature of the bottom curve and ticked manner of execution of the terminal part of S etc. (Page-143 of the Paper Book refers) This is an opinion only that was formed on the manner of making a sample signature, which may be very closely/similarly imitated by some other person (more so, if he has some idea about Forensic Science relating to identification of handwriting). This opinion cannot change/belie the other circumstantial/corroborative facts/evidences on record. It cannot be concluded that the signature that appeared on the export document was of Shri S.Das, the partner of the appellant company. Further, there are a lot of force in the submission made by the Learned Advocate that the appellant was not in the knowledge of any mischief which has been committed by the importer. It is found that Tribunal in the case of Lohia Travels and Cargo Vs. Commissioner of Customs, New Delhi (Prev.) 2015 (8) TMI 141 - CESTAT NEW DELHI , has held that When there is no evidence to establish that the appellant had prior knowledge of the goods imported and also when there is no evidence to establish any wrongful intent on the part of the appellant then there is no reason to impose penalty. After finding that the appellant has become unknowingly party to fraudulent import, the imposition of penalty is unjustified. In absence of any investigation regarding indulgence of the CHA in clearance of the export consignment, it is found that the impugned order is not sustainable and the same is being set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Fraudulent export under Duty Entitlement Pass Book (DEPB) Scheme. 2. Violation of Customs House Agents Licensing Regulations Act, 2004 (CHALR). 3. Suspension and revocation of Customs House Agent (CHA) License. 4. Discrimination in the suspension/revocation of licenses among different CHAs. 5. Delay in taking action against the CHA. 6. Compliance with the Hon'ble High Court's remand order. Detailed Analysis: 1. Fraudulent Export under DEPB Scheme: The case involves allegations against M/s Sungrowth Exports Pvt. Ltd. for fraudulent export of readymade garments under the Duty Entitlement Pass Book (DEPB) Scheme. The appellant, a Custom House Agent (CHA), was implicated as a co-noticee for allegedly assisting in clearing the consignment. The CHA’s “G” Card Holder, Shri Samar Goswami, was accused of forging the signature of the appellant’s partner and handling the export consignment independently without the appellant’s knowledge. 2. Violation of CHALR: A show-cause notice dated 22.06.2005 was issued to the appellant for alleged violations of Regulations 13(d) and 13(n) of the CHALR. The Commissioner adjudicated this notice by revoking the appellant’s CHA License and forfeiting the security deposit. The appellant contended that the fraudulent acts were committed by Shri Goswami beyond the scope of his employment, and thus, the appellant should not be held responsible. 3. Suspension and Revocation of CHA License: The Tribunal had previously revoked the suspension of the appellant’s license on 16.01.2006, citing undue delay and lack of immediate nexus with the alleged offense. Despite this, the Commissioner suspended the license again on 16.02.2009 and issued another notice for revocation on 30.08.2010. The Tribunal found this repeated suspension and revocation to be judicially incorrect and unacceptable, especially since the appellant had already received a favorable order from the Tribunal. 4. Discrimination among CHAs: The appellant argued that two other CHAs involved in the same fraudulent export by M/s Sungrowth Exports Pvt. Ltd. did not face suspension or revocation of their licenses, indicating discriminatory treatment by the department. 5. Delay in Taking Action: The Tribunal noted significant delays in the department’s actions, including the issuance of the show-cause notice and the suspension order, which occurred years after the alleged offense. The Tribunal emphasized that such delays undermined the justification for suspension and revocation of the appellant’s license. 6. Compliance with High Court’s Remand Order: The Tribunal’s order was in compliance with the Hon'ble High Court’s remand order dated 17.07.2019, which directed re-adjudication of the case without being influenced by the prescribed timeline under CHALR. The High Court clarified that there is no statutory timeline under the Customs Act, 1962, and related regulations for such actions. Conclusion: The Tribunal concluded that the appellant was not involved in the fraudulent export and that the actions taken by Shri Goswami were without the appellant’s knowledge or approval. The forensic report on the signature was deemed inconclusive. The Tribunal also referenced similar cases where penalties were not imposed on CHAs for acts committed by their employees without their knowledge. Consequently, the impugned order was set aside, and the appeal was allowed with consequential relief to the appellant.
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