2012 (9) TMI 425 - HC - Customs

Exhibit B (wrongly typed as Exhibit D) - Whether declaration contained therein would be construed as authorization under Regulation 13(a) in favour of CHA? - Held that - Considering Exhibit B on the letterhead of the appellant it is titled as shipping instructions. As a part of this document, a declaration is purported to be signed by the exporter. This document at Exhibit B is not referred to in the order in original dated 22.8.2008 passed by the Commissioner of Customs (General), Mumbai Zone-I and also not in the order dated 12.1.2010 passed by the CESTAT - no point in answering this question. Revocation of CHA License - Held that - Having gone through the statement of Mr. Parmesh as well as Mr. Vikas Doshi it is noticed that Mr. Vikas Doshi managed to get the cargo of M/s. Doshi International and M/s. Kumar Enterprises for export. The statements of Mr.Parmesh and Mr. Vikas Doshi clearly indicate that documents such as invoices, SDF Form along with Annexure B duly signed by the exporter/exporter s representative were received by the department from the exporter through Shri Vikas Doshi, however, the fact remains that the authorization as contemplated in Regulation 13(a) and 13(b) were not filed in respect of the shipping bills of M/s. Darshan International and M/s. Kumar Enterprises. The statements of Mr. Parmesh as well as Mr. Vikas Doshi clearly go to show that Mr. Parmesh or any other employee of the said company were not knowing the exporters i.e. M/s. Darshan International and M/s. Kumar Enterprises. It is seen that Mr. Vikas Doshi, procured the documents from M/s. Darshan International and M/s. Kumar Enterprises and by using the CHA Licence of the said company the cargo was sought to be cleared without authorization - as the major charges levelled against the appellant stand proved cannot be faulted The CHA Licence of the Appellant shall stand suspended from 19.8.2008 till 30.9.2012 - directions to deposits the security deposit as per the present rules and regulations, with the appropriate officer on or before 30.9.2012 to get CHA licence restored with effect from 1.10.2012 - against assessee.

Summary

Issues Involved:
1. Whether Exhibit B and the declaration contained therein would be construed as authorization under Regulation 13(a) in favor of CHA.
2. Whether the Tribunal was right in holding that there was a violation of Regulation 13(a), 13(b), 13(d), and 13(e) of the Custom House Agents Licensing Regulations, 2004 by the Appellant CHA.

Issue-wise Detailed Analysis:

Issue 1: Whether Exhibit B and the declaration contained therein would be construed as authorization under Regulation 13(a) in favor of CHA.

The court refrained from answering this question because Exhibit B was not referred to in the original orders by the Commissioner of Customs or the CESTAT. Hence, the question remains unanswered.

Issue 2: Whether the Tribunal was right in holding that there was a violation of Regulation 13(a), 13(b), 13(d), and 13(e) of the Custom House Agents Licensing Regulations, 2004 by the Appellant CHA.

The court examined whether the appellant company violated multiple regulations under the Custom House Agents Licensing Regulations, 2004. The appellant was accused of unauthorized use of its CHA license by Mr. Vikas Doshi to clear cargo for M/s. Darshan International and M/s. Kumar Enterprises without proper authorization. The court noted that the appellant did not have authorization letters from these companies, violating Regulation 13(a) and 13(b).

The statements of Mr. Parmesh and Mr. Vikas Doshi, recorded under Section 108 of the Customs Act, 1962, were considered crucial evidence. The statements indicated that Mr. Vikas Doshi managed to get the cargo cleared using the appellant's CHA license without proper authorization. The court found that the appellant failed to comply with Regulations 13(a), 13(b), 13(d), and 13(e), which require obtaining proper authorization, transacting business personally or through an approved employee, advising clients to comply with the Customs Act, and exercising due diligence.

The Commissioner of Customs had revoked the CHA license and forfeited the security deposit of the appellant. The CESTAT upheld this decision. The court, however, considered the appellant's argument that the punishment was too harsh given that this was the first violation and the appellant had already suffered a substantial period of business suspension.

Conclusion:

The court modified the order, holding that the CHA license should be restored from 1.10.2012, provided the security deposit is made by 30.9.2012. If the deposit is made after 1.10.2012, the license will be restored from the date of deposit. The court concluded that the appellant had already suffered sufficient punishment and a lenient view was appropriate given the circumstances. The court emphasized that this decision was specific to the facts of this case and should not be treated as a precedent.