2015 (12) TMI 313 - AT - Customs

Revocation of CHA license - forfeiture of the entire security deposit - sub-letting of CHA licence - contravention of Regulation 13 (b) by employing somebody else for undertaking the customs clearance work other than an employee - contravention of Regulation 13 (k) regarding non-maintenance of records properly - contravention of regulation 13(n) by delayed submission of BIS certificate in respect of the goods imported - contravention of regulation 13 (o) relating to non-verification of the antecedents of the importer - Held that - no evidence has been adduced by the Revenue to show that any consideration has been received by the appellant CHA for sub-letting the licence either from Sri. Nirav Goradia or from M/s Emkay Freight Services. Further we notice that though Sri. Nirav Goradia has been issued with a G card, in the transaction relating to Jayem Impex, he has not attended to any clearance work. In this factual scenario, the charge against the CHA of sub-letting the licence has no basis whatsoever. The Inquiry officer has examined at length this issue in his inquiry report and has also come to the same conclusion. Clearance work relating to the transactions was undertaken by Sri. Satish Tole, an employee of the CHA and not by Sri. Nirav Goradia. Therefore, the finding of the inquiry officer that this charge is not proved cannot be faulted at all and there was no other material available with the adjudicating authority to come to a different conclusion. In the article of charge issued to the appellant there is no specific allegation of contravention of Regulation 18. The only charge is that the muster roll of the employees has not been properly maintained and non-maintenance of cash register. However, in respect of Mr. Nirav Goradia, this allegation does not sustain because his name figures both in the muster rolls and the salary vouchers. There is no allegation whatsoever that the transactions undertaken in respect of Jayem Impex or other customers were not reflected in the records maintained by the appellant. If that be so, the infractions, if any, are only minor or technical in nature. The appellant has explained that there was a delay on the part of the importer in furnishing the same and hence the delay on his part. It is not evident from the records that the delayed submission of BIS certificate had any adverse impact on the payment of customs duty. In fact no action has been initiated either against the CHA or against the importer under the provisions of the Customs Act. Thus there is no material evidence available on record to prove this charge. Appellant has produced a copy of the authorisation issued by Jayem Impex for undertaking the transactions. It is not the case of the revenue that M/s Jayem Impex was a fictitious or bogus firm - Decided in favour of appellant.

Summary

Issues involved:
1. Revocation of CHA licence and forfeiture of security deposit based on alleged illegal business practices and subletting of licence.
2. Allegations of contravention of various regulations under CHALR, 2004 against the CHA.
3. Dispute over evidence and findings regarding subletting of licence, employment of non-employee, maintenance of records, delay in submission of BIS certificate, and verification of importer's antecedents.
4. Interpretation of regulations and legal precedents in determining the gravity of violations and justification for revocation of CHA licence.

Detailed analysis:
1. The appeal challenged the revocation of CHA licence and forfeiture of security deposit due to alleged illegal practices by M/s Jai Ambe Logistics, Mumbai, following a complaint from M/s Jayem Impex. The licensing authority received a report alleging subletting of the licence to an employee, improper record-keeping, and failure to verify importer details.
2. The inquiry officer found some charges proved, such as improper record-keeping and failure to verify antecedents, but disagreed on subletting the licence. The adjudicating authority upheld all charges, leading to the revocation of the licence and forfeiture of the security deposit.
3. The appellant argued against the charges, citing lack of credible evidence for subletting, proper record-keeping, and verification of importer details. They also highlighted the employment of a different employee for customs clearance work and delays in obtaining certificates.
4. The Tribunal analyzed each charge, finding insufficient evidence for subletting and non-employee employment. They noted minor infractions in record-keeping and delays, which were technical breaches. Legal precedents were cited to support the view that the violations were not grave or serious enough to warrant revocation of the licence or full forfeiture of the security deposit.
5. Ultimately, the Tribunal set aside the revocation of the CHA licence, reduced the forfeiture amount, and ordered the restoration of the licence with a partial recredit of the security deposit. The decision was based on the lack of substantial evidence for serious violations and the technical nature of the infractions noted.

This detailed analysis covers the issues involved in the legal judgment, providing a comprehensive overview of the facts, arguments, findings, and the Tribunal's decision.