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TMI Blog2010 (2) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... laration of value and description of the export goods to avail undue DEPB credit, the Commissioner confiscated the goods denying the claim for DEPB credit and imposed penalties under Section 114 of the Customs Act, 1962 (the Act) on various persons. A penalty of Rs. 25,000/- was imposed on Shri C.N. Rajendra Kumar under Section 114 of the Customs Act, 1962 (the Act) for facilitating the attempt to illegally export the consignment of cheap clothes in the guise of ladies nightwear over invoicing its value. Separate action was initiated against the CHA under the CHALR. On 8-4-2004, the licence of the CHA was suspended under Regulation 20(2) of CHALR. An enquiry was conducted under the regulations and the Inquiry Officer submitted a report to the Commissioner. M/s. H.B. Cargo Services had 10 signed blank shipping bills to Transasia Shipping. From the various statements recorded from Shri C.N. Rajendra Kumar, partner and authorized signatory of M/s. H.B. Cargo Services, the Commissioner found that the CHA had not exercised adequate caution/diligence when it had signed blank shipping bills without knowing the exporter or the nature of the goods to be exported. The careless and irrespon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unfit to continue operations as CHA in the Customs station. Accordingly, the Commissioner revoked the licence of the CHA under Regulation 20 and also forfeited the security furnished with the Department vide the impugned order. 3. In the appeal before the Tribunal, the impugned order is assailed mainly on the following grounds :- The Inquiry Officer had arranged to record a statement of Shri C.N. Rajendra Kumar under Section 108 of the Act. This was contrary to provisions of Regulation 22 of CHALR, as the inquiry officer himself had to hear the CHA. As per the enquiry report, the appellant himself (Shri C.N. Rajendra Kumar) had filed the shipping bills on behalf of the exporter and therefore the finding that Shri C.N. Rajendra Kumar had signed the blank shipping bills without knowing the exporter was incorrect. The appellant knew the exporter. The consignment was stuffed in the four containers at the manufacturer s premises in the presence of Central Excise officers and the stuffed containers arrived at the Customs station with intact seals. The officers who had supervised the stuffing of the containers at the exporter s premises had been exonerated from the charge of conniva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings that the Shri C.N. Rajendra Kumar, partner of the appellant firm, had sold 10 signed blank shipping bills to M/s. Transasia Shipping for a consideration of Rs. 150/- per shipping bill. Various statements recorded from Shri C.N. Rajendra Kumar and his admission during hearing before the Commissioner establish this finding. The appellant was punished for his role in abetting the attempt to illegally export consignments of rags and cheap clothes under the claim for inadmissible DEPB credit and penalty of Rs. 25,000/- was imposed on him under Section 114 of the Act by the Commissioner. The system of clearance of consignments for import and export through authorized CHA has been put in place to ensure that illicit trade does not take place and the CHAs are appointed by the department after following prescribed procedure to guard against the departmental authorities having to deal with strangers who could mislead officers and defraud the revenue or compromise the security of the nation. CHAs are made accountable for the truth of the declaration as regards the entry filed for import or export of goods through Customs stations. By selling signed blank shipping bills or bills of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in sealed containers stuffed at the factory premises of the manufacturer under the supervision of the Central Excise officers. Even if the exporter had engaged any other CHA for entering the impugned consignment for export, the CHA would have filed the shipping bills with the description and value following the details in the accompanying ARE-2s. That the exporter in the instant case had used the signed shipping bills which the department found to have been sold for consideration by the appellant would not have made any difference to the subsequent events that unfolded. Goods stuffed under the supervision of Central Excise officers and arriving at the Customs station in sealed containers are not usually subjected to examination before export. Examination and detection of the infractions came about obviously on account of the specific intelligence received by the investigating agency. Therefore, the conclusion of the enquiry officer as regards the appellant s contribution to the attempted fraud does not appear to be correct. To that extent the impugned order is based on an incorrect report. 9. The various case laws cited by the appellant support his claim for a lenient decision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the decision of the Tribunal in the Falcon case (supra). It was found that in the absence of any evidence of fraud or collusion engaged in by the appellant, the offence found against the CHA was not grave enough to warrant revocation of the licence. 11. We have also considered the judicial authorities relied on by the Revenue. The important ratio of Jasjeet Singh Marwaha case (supra) is as follows : 7.4 In so far as question no. 4 is concerned, we are of the view that since a CHA acts on behalf of the importer, it is not only his obligation to ensure that the entries made in the bill of entry are correct but also that a true and correct declaration of value and description of goods is made, and in the event of any infraction such as misdeclaration, he can be penalized under the Regulation results in a misconduct which is of the nature which renders him unfit to transact the business of a CHA, at the Customs Station. 12. The Hon ble High Court also held that contrary to various earlier decisions of the Tribunal, statements recorded under Section 108 of the Act was admissible in evidence in proceedings under CHALR. In Sri Kamakshi Agency case (supra), the Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the revenue and hence required to be seriously dealt with under the CHA Licensing Regulations. The Bench was not inclined to take a lenient view. On the other hand, it held that the Tribunal had no power to take such a view. On our part, we observe that exercising discretion, having regard to the peculiar facts and circumstances of a given case, could necessarily result in taking of lenient view vis-a-vis the stance of lower authority. No line can be drawn between lenient view and discretion. Both go side by side depending upon the facts and circumstances of the case. It has been held by the Apex Court that statutory Tribunals do have discretion which, however, should be exercised in accordance with sound judicial principles. Therefore, with great respect to the WZB, we are of the considered view that, in sound exercise of discretion, this Tribunal can take an appropriate view in a case involving revocation of CHA licence, having regard to the peculiar facts and circumstances of the case. In the present case, admittedly, the licence was suspended as early as in 1998 and was revoked in September, 2000. Apparently, the appellant has suffered enough on account of the orders of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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