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2012 (12) TMI 271 - AT - CustomsRevocation of CHA licence Held that - CHA sublet his licence for a consideration in gross violation of Regulation 12 of CHALR, 2004 and this is an act of corruption - Customs area, the Commissioner of Customs is responsible for the happenings, the discipline to be maintained there and he is best placed to understand the importance of CHA and if he takes a decision necessary for that purpose, the Tribunal should not ordinarily interfere on the basis of its own notions of difficulties likely to be faced by CHA or their employees, and not be swayed by considerations of misplaced sympathy - Customs Act proceedings in the same case, the CHA has been found to be guilty of the offences punishable under the provisions of Customs Act and has been imposed with a penalty of Rs. 5 lakhs under the provisions of Section 112(b) of the Customs Act - fraud in this case has been committed in so many consignments over a long period of time and the same could not have happened without the connivance of the CHA - decision of the ld. Commissioner to revoke the CHA licence is justified
Issues Involved:
1. Violation of Regulation 12 of the Customs House Agents Licensing Regulations (CHALR), 2004. 2. Violation of Regulation 13(a) of CHALR, 2004. 3. Violation of Regulation 13(b) of CHALR, 2004. 4. Violation of Regulation 13(d) of CHALR, 2004. 5. Violation of Regulation 13(n) of CHALR, 2004. Issue-wise Detailed Analysis: 1. Violation of Regulation 12 of CHALR, 2004: The primary charge against the Customs House Agent (CHA), M/s. Santon Shipping Services, was that it transferred its license to Shri V.P. Nair for monetary consideration. The CHA allowed Shri Nair to use its license on a regular basis, which is a violation of Regulation 12. The CHA firm's partner, Shri Bose J. Fernando, admitted in his statement that he had reached an understanding with Shri Nair to allow the use of his license for fixed charges. The Tribunal found that the relationship between the CHA and Shri Nair was not typical of an employer-employee relationship, as Shri Nair was not paid a salary and was handling work exclusively for one exporter. The attendance and salary registers produced by the CHA were deemed fabricated. Therefore, the Tribunal upheld the Commissioner's finding that the CHA violated Regulation 12 by allowing a third party to use its license. 2. Violation of Regulation 13(a) of CHALR, 2004: The CHA was required to obtain authorization from each exporter it represented. However, the CHA admitted that it did not know the exporter, M/s. Shradha Exim Pvt. Ltd. (SSEPL), and did not obtain any authorization from them. The CHA received export documents from a third party, Shri Krishna Kumar of Airose Shipping Pvt. Ltd., rather than directly from the exporter. This constituted a clear violation of Regulation 13(a), which mandates obtaining authorization from the exporter. 3. Violation of Regulation 13(b) of CHALR, 2004: The CHA obtained a Customs pass for Shri Nair by falsely declaring him as an employee. The Tribunal found that Shri Nair was not an actual employee, as evidenced by the fabricated attendance and salary registers. The CHA's fraudulent action of obtaining a Customs pass for a non-employee constituted a violation of Regulation 13(b). 4. Violation of Regulation 13(d) of CHALR, 2004: The CHA failed to advise its client of the provisions of the Customs Act and did not discharge its duties with utmost speed and efficiency. The Tribunal did not specifically address this charge in detail, but the overall findings support that the CHA did not fulfill its advisory role as required by Regulation 13(d). 5. Violation of Regulation 13(n) of CHALR, 2004: The CHA did not discharge its duties without avoidable delay. While this specific charge was not elaborated upon in the Tribunal's decision, the overall conduct of the CHA in allowing misuse of its license and failing to obtain proper authorization suggests a lack of due diligence and efficiency, thereby violating Regulation 13(n). Conclusion: The Tribunal upheld the Commissioner's decision to revoke the CHA license of M/s. Santon Shipping Services. The violations of Regulations 12, 13(a), and 13(b) of CHALR, 2004, were clearly established. The Tribunal found that the CHA's conduct, including allowing a third party to use its license for monetary gain and failing to obtain proper authorization from the exporter, justified the revocation of the license. The appeal was dismissed, affirming the Commissioner's order.
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