9911796707
TMI Blog2010 (10) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under the Customs Act, 1962 vitiates disciplinary proceedings initiated under CHALR, 1984 made under Section 146(2) of the Act. Factual background : 2. The factual background giving rise to the aforesaid question of law is as under : A Bill of Entry dated 12th February, 2001 was filed by the importer M/s. S.B. Impex ("the importer" for short) declaring the same as Sodium Bicarbonate, where the respondent acted as the Customs House Agent ("CHA" for short). The goods were examined. The clearance was allowed. Subsequent to this clearance, during the search of the importer's godown, 921 bags were seized in a warehouse located outside the town, by the Customs Officer on the allegations that the goods imported were not which were actually s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the said period of investigation nothing adverse was found against the CHA as regard the clearance of five containers of Sodium Bicarbonate. As such no show cause notice was issued to the CHA under the provisions of the Customs Act, 1962 for that misdeclared import. No allegations of any collusion between the shed staff and the CHA were made at any time. It was urged in the appeal that the CHALR, 1984 lays down that the agency gets over on complete delivery of the goods, after payment and requisite duty. Thus, clearance of the goods from the Customs were complete in toto and that the importer was a new client as such the CHA as such there was no occasion to suspect the bona fides of the importer. It is further submitted that merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the aforesaid order, the Revenue has invoked the appellate jurisdiction of this Court. Submissions : 8. Mr. Jetly, learned Counsel appearing for the Revenue urged that in order to initiate the enquiry proceeding under the provisions of the CHALR 1984 against the CHA it is not necessary to initiate action against him under the provisions of the Act. He further contends that enquiry proceeding under CHALR 1984 is independent and distinct from the proceedings under the provisions of the Act. He further submits that the Tribunal was not justified in holding that the charges against the respondent CHA in enquiry proceeding vitiated for want of action under the provisions of the Customs Act. He, thus, submits that the order setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. He, thus, submits that the impugned action against the CHA was unwarranted and that the Tribunal was justified in setting aside the order of the Commissioner. 11. Mr. Kantawala further submits that the proceedings were initiated by the Custom Officers under the provisions of the Act against the importer and on the same allegations, the action is taken against the CHA respondent herein. He, thus, submits that the allegations against the importer and the CHA being common, it was obligatory on the party of the Department to make the CHA, a co-noticee and that the CHA ought to have been tried along with importer. Once the CHA is left out from the proceeding under the Act, then by way of disciplinary action, the same object cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the absence of joining respondent as a co-noticee under the said Act constitutes waiver on the part of the Customs to take action against the CHA. If that be so, no action under CHALR 1984 could have been initiated against the respondent herein. Mr. Kantawala, thus, tried to support the impugned order passed by the Tribunal. Consideration : 14. Having heard the rival parties, the substantive issue which falls for consideration along with allied issue is whether the impugned order passed by the Tribunal needs interference at the hands of this Court. 15. In order to answer the question raised, one has to turn to the genesis of CHALR, 1984. The said CHALR, 1984 is made in exercise of powers conferred by sub-section (2) of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct or omission is jointly committed by the CHA along with the importer or exporter then it could give rise to a joint action against both, which has to be dealt with in accordance with the provisions of the Act, such action may, ultimately, culminate either in discharge or in confiscation of the goods and/or imposition of fine and/penalty in such an action CHA could also be visited with the fine and penalty including an action for suspension or cancellation of license. But such an action under the provisions of the Act is not always necessary if the misconduct of the CHA can be dealt with independently under the provisions of the Regulations without invoking provisions of the Act. In this view of the matter, the question sought to be canvas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
