2012 (12) TMI 354 - AT - Customs

Revoking of CHA licence alleged that Enquiry Officer has not conducted the enquiry as per Regulation 22(3) and (4) of the CHALR, 2004 - Held that - On the previous unblemished record of the CHA, it must be borne in mind that a single act of corruption is sufficient to award the maximum penalty which, under the CHALR, is of revocation of the license - a personal hearing was given to the appellants on 24-1-2008 and the CHA did not reiterate for cross-examination of the officers listed as witness - enquiry was conducted regarding violation of Regulation 13(a) & 13(d) of CHALR. This is a fact on record that the CHA did not get any authorization from the exporter on whose behalf he was filing the export document. Since there was no authorization the violation of Regulation 13(a) has been established against the CHA by the enquiry officer as well as the Commissioner - revocation of the CHA licence by the Commissioner of Customs is sustainable

Issues Involved:
1. Whether the enquiry officer conducted the enquiry as per Regulation 22(3) and 22(4) of CHALR, 2004.
2. Whether the revocation of CHA licence by the Commissioner of Customs is sustainable.
3. Whether the punishment suffered by the appellant is sufficient in the facts and circumstances of the case.
4. Whether sufficient material/evidence is available on records to substantiate the alleged misconduct on the part of the CHA.

Detailed Analysis:

1. Enquiry Conducted as per Regulation 22(3) and 22(4) of CHALR, 2004:

The appellant argued that the enquiry was not conducted in accordance with Regulation 22(3) and (4) of CHALR, 2004, as no witnesses were called for examination, and the appellant was not allowed cross-examination. Regulation 22(3) mandates the enquiry officer to consider relevant documentary and oral evidence, and Regulation 22(4) entitles the CHA to cross-examine the persons examined. The appellant cited Thakkar Shipping Agency, which held that statements recorded under Section 108 of the Customs Act, 1962, are not to be used as evidence under CHALR without offering the person for cross-examination.

However, the department contended that the CHA did not insist on cross-examination during the personal hearing and did not attend subsequent hearings. The enquiry officer's findings were recommendatory, and the Commissioner of Customs provided sufficient opportunity to the appellant to argue their case.

2. Sustainability of Revocation of CHA Licence:

The appellant's licence was revoked for violating Regulation 13(a) and 13(d) of CHALR, 2004. The appellant did not have proper authorisation from the exporter and failed to advise the client on compliance with the Customs Act. The Commissioner of Customs found these violations substantiated and revoked the licence, which the department argued was necessary to maintain discipline in the customs area.

The appellant argued that the punishment was harsh and cited several cases where lesser penalties were imposed. However, the department relied on decisions from the Hon'ble High Court of Andhra Pradesh in Commissioner of Customs, Hyderabad-II v. H.B. Cargo Services and the Hon'ble High Court of Bombay in Commissioner of Customs (General) v. Worldwide Cargo Movers, which upheld the revocation of licences for similar violations.

3. Sufficiency of Punishment Suffered by the Appellant:

The appellant argued that being out of business for almost three years since the suspension of the licence was sufficient punishment. The learned Member (Judicial) agreed, citing Falcon Air Cargo, which held that the punishment already suffered was sufficient.

However, the learned Member (Technical) and the third Member (Technical) disagreed, emphasizing the gravity of the violations and the need for exemplary punishment to maintain compliance and discipline. They cited the Hon'ble High Court of Andhra Pradesh and the Hon'ble High Court of Bombay, which supported revocation for serious misconduct.

4. Sufficient Material/Evidence to Substantiate Misconduct:

The enquiry established that the CHA did not obtain proper authorisation from the exporter and failed to advise the client on compliance with the Customs Act. The appellant's appeal against the penalty under the Customs Act was dismissed by the Tribunal, further substantiating the misconduct.

Majority Decision:

The majority upheld the Commissioner of Customs' order revoking the CHA licence, finding that the enquiry was conducted properly, the violations were grave, and the punishment of revocation was justified. The appeal filed by the appellant was dismissed.

← Previous Next →