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TMI Blog2006 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... port fraud case of undervaluation mis-declaration and contravention of EXIM Policy, in import of one New Volkswagen Touareg Car imported vide B/E No. 252983 dated 11-05-05 at Air Cargo Complex, Sahar resulting in a personal penalty of Rs. 50,000/- (Rupees Fifty Thousand only) on Shri Rehman Iqbal Shaikh, vide Order-in-Original CAO No. CC-17 (SP)/2005 ADJ ACC dated 18-07-2005 for his involvement in the said import fraud, the importer Shri Ahmed Imran Shaikh in the said case was real younger brother of Shri Rehman I. Shaikh who did not advise the Importer about the compliance of the provisions of Customs Act, 1962, Import Licensing Note and other Rules and Regulations and he did not bring to the notice of the department such non-compliance of the provisions by the Importer. He also was involved in the import fraud in connivance with the actual Importer and made effort to siphon off import duty by mis-declaring the value of the imported car. (ii) In another case of outright smuggling of a new Mercedes Car detected at Jawaharlal Nehru Port (Nhava Sheva), Shri Rehman I. Shaikh was involved and was arrested by SUB, JNCH. In this case, one Mercedes Benz car of assessabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding violation of Regulation of CHALR, 2004 which stipulates that the CHA shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. (iii) Article of Charge - III - regarding violation of Regulation 13(1) of CHALR, 2004, which stipulates that the CHA shall ensure that all documents, such as bills of entry and shipping bills delivered in the Customs Station by him show the name of the importer or exporter, as the case may be, and the name of the Customs House Agent, prominently at the top of such documents. (iv) Article of Charge - IV - regarding violation of Regulation 19(8) of CHALR, 2004, which stipulates that the CHA shall exercise such supervision as may be necessary to ensure the proper conduct of any such employees in the transaction of business as agents and be held responsible for all acts or omissions of his employees in regard to their employment. (v) Article of Charge - V - regarding violation of Regulation 13(n) of CHALR, 2004, which stipulates that the CHA has to ensure that he discharges his duties as Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this case. The appellant firm have not been issued any Show Cause Notice for the alleged complexity in clearance of the Volkswagaon car from the Air cargo Complex, Sahar, Mumbai, the appellant firm came to know about the same only after the adjudication order was received on 18-7-2005, and as regards clearance of the Mercedes car in May, 2005, the same came to the knowledge of the appellant firm only when the employee was arrested. On the arrest of the employee, after consideration of the conduct, the said employee has been dismissed from the service. In this view of the facts on record the firm cannot be held to be liable for the said alleged acts of the employee. (b) There is nothing on record to bring out any other flaw in the conduct of the firm business as a CHA licensee firm. They were not even made a notice in the two proceedings initiated under the Customs Act after due enquiry. The Enquiry Officer's report under CHALR finds the firm to be liable tor these two acts of violation under the Customs Act, 1962 are in direct contradiction to the findings arrived at by the Investigator, who investigated the case of Customs violation and smuggling of the cars and did not find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions by the CHA firm to call for revocation of their licence. (d) In this view of the matter, the revocation of the licence which would deprive the CHA licensee and other employees of their livelihood is a punishment which is not commensurate with the nature of the offence if any. (e) The ld. Commissioner has failed to consider that in the case of import of Volkswagon car, there is no averment in the report received from the Commissioner of Customs, Sahar that the importer shown on the Bill of Entry, filed, in that case or the alleged financier/actual importer Shri Sumesh Menon or Shri Rehman Shaikh were acting in preconcert or with the knowledge or an anticipated profit gain of the appellant firm, resulting from any violation or misdeclaration. It is on record and accepted that the firm was not even aware about the importers, in that case, viz Shri Ahmed Imran Shaikh, was brother of Shri Rehman I. Shaikh; since a Bill of Entry was filed in the routine course in the matter of import, which was to be examined and thereafter assessed by the proper Officers of Customs and only after such scrutiny the goods could be released, there was no reason for the firm to even suspect any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) The ld. Commissioner held that Shri Rehman Shaikh was actively involved in the violation and the Appellant failed to take any action against him to prevent such violation. After being aware of the violations, the Appellant failed to take any prompt action against Shri Rehman Shaikh and that therefore, it was held that Regulation 13(n) was violated. The said Regulation requires that the duties of the CHA shall be discharge with utmost speed and efficiency without avoidable delay. The Appellant was under obligation to inform about any illegality to the department immediately upon receiving such information. However, in the instant case, only after the alleged violations were detected by the Customs authorities, the Appellant came to know about the same. Any action against the employee by the Appellant is neither prescribed under Customs Act, 1962 nor under CHALR, 2004. Therefore, any delay in the same cannot be held as a reason to hold that Regulation 13(n) was violated. 3.1 The CHA licence was the only means of earning livelihood by the Appellant and its other employees. The livelihood of the Appellant and its other employees is in total jeopardy. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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