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TMI Blog2005 (9) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... was arranged by one Shri Tapan Kumar Banerjee. The said Shri T.K. Banerjee was introduced to Shri D.P. Singhal by one of Shri Jayantilal Patel, who financed the import and also agreed to pay Rs. 300/- per MT to Shri T.K. Banerjee. It was also found that the importer M/s. Star Pulp and Paper Products produced bogus consumption certificates and bogus affidavits with the active connivance of Shri Jayantilal Patel & Shri T.K. Banerjee. 2. Shri T.K. Banerjee joined the present CHA as Docks clerk in 1987. As per the allegation in the impugned order, T.K. Banerjee was introduced to Shri Jayantilal Patel by Shri Himmat Bhatia, the Prop of the appellant M/s. V.B. Bhatia & Co., CHA. It is primarily on this basis and the fact that Shri T.K. Banerjee was in employment of the said CHA, it has been concluded by the Commissioner that the appellant has failed to exercise control over the activities of T.K. Banerjee, as employee and was aware of misuse of imported material by the importer, and did not inform the revenue, he has cancelled the license of the CHA. 3. Shri S.P. Mathew, ld. Advocate appearing for the appellant draws our attention to the articles of charge and the evidence co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revocation of licence which deprives CHA of means of his livelihood. 6. After hearing ld. DR, we find that the charges against the appellant in the present case stand on a very week ground. It has been mainly contended that the appellant was the one, who introduced T.K. Banerjee to Shri J.B. Patel, who further committed the fraud along with the importer. Such introduction by itself cannot be made a basis for holding that CHA was also a party to the fraudulent activity of Shri J.B. Patel along with Shri T.K. Banerjee. Similarly, it is seen that sub-regulation 7 of the Regulation 20 provides for exercise of control by the CHA over his employees in the transaction of business as agent and holds him responsible for all acts or omission of his employee in regards to their employment. This sub-regulation cannot be pressed into service and cannot be extended to private or personally conduct of such employees. Similarly production of bogus evidence by the importer as regards end use by itself cannot reflect upon the involvement or knowledge of CHA. He cannot be expected to verify and exercise control over the goods imported for the purpose of end use. As rightly argued CHA deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (C. Satapathy) Member (Technical) 8. The following difference of opinion is placed before the Hon'ble President in terms of Section 129C(5) of the Customs Act, 1962 :- Whether the appeal is to be allowed as held by the Member (Judicial) OR Whether the appeal is to be partly allowed as held by the Member (Technical) Sd/- (C. Satapathy) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial) 9. [Order per : S.S. Sekhon, Member (T)]. - In this reference made both sides were heard on 16-9-2005. The submissions and the material on record including the stay order dated 25-1-1995 in Appeal No. C/404/94-Bom. produced by the ld. Advocate for the Appellant is also considered. After considering the material it is found :Z (a) the facts of the case have been analysed and recorded in the order prepared by ld. Member (J) and are not being repeated in order to avoid uncalled for duplication. (b) The CHA has been charged under the CHA Licensing Regulations, 1984 (herein after referred to as CHALR). A perusal of the charges and the findings reveal (i) article of charge No. 1 is bringing a liability on the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -concert or knowledge on part of Shri Himmatbai of the CHA company, as in the CHA business, this would be a routine affair, where documents for imports are being brought by various persons on behalf of firms situated in Mumbai or outside Mumbai as in this case. A perusal of the admission made by Shri Banerjee, indicates that the end use bond, OGL declaration, import declaration and other documents were personally obtained by him and the present appellant was not in the knowledge of the same, especially as regards the consumption certificates obtained by giving false lorry receipt numbers. A Custom House Agent's licence is creating an agency for the purpose of clearance of goods through the Customs and on such a clearance being effected, the agency would terminate subsequent obtaining of false consumption certificate, lorry receipts etc. after the goods are delivered at a site in Mumbai i.e. the godowns mentioned herein above, the agency function terminated. All fabricated documents thereafter obtained and submitted without the knowledge of the CHA licensee will not call for article of charge to be established. There is no evidence of exercise of lack of supervision, as there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e terms of Banerjee's employment as a dock clerk. The article of charge III are therefore cannot be upheld. (e) In this case the imports were made longtime back and the CHA licence had been renewed from 1986-89, 1989-92, 1992-95, 1995-2000 and 2000-2005 without any adverse remarks or observations. Therefore for this incident, which appears to have taken place in the year 1982-83 for which the Appellants had been given a notice and are in appeal before this Tribunal vide Appeal No. C/404/94-BOM and the fate of that appeal decision has not been considered by the Ld. Commissioner, no reason could be find to revoke this licence in the year 2003. There is reason to arrive at a bar of limitation but revocation of a licence of a CHA for an act done in 1986-87 to the knowledge of the department almost a decade and a half thereafter is a punishment not commensurate with the acts, even if proved to be upheld. Revocation of a CHA licencee causes not only the loss of business for the licencee but also affects other employees. Timely action is therefore called for in case the acts committed are nefarious. By extending the CHA licenses from time to time, the department s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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