9911796707
TMI Blog2011 (2) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... conducted investigations against the respondent CHA and allegedly found that the partner of the respondent firm, Shri Pravin Nagda and its employee Shri Ravindranath Nair had aided and abetted the importers in filing refund claims of 4% SAD in respect of wooden logs in terms of Notification No. 102/2007-Cus., dated 14-9-2007. During the course of search at the respondent CHA's business premises, certain departmental files relating to such refund claims filed by the importers came to be found. Pursuant to the aforesaid investigation, the Commissioner vide order dated 1-4-2010 suspended the operation of the CHA licence in terms of Regulation 20(2) of the Customs Housing Agents Licensing Regulations, 2004 (the Regulations). Subsequently, after giving them post-decisional hearing, the Commissioner, vide his subsequent order dated 21-5-2010, confirmed the suspension. Being aggrieved, the respondent CHA preferred appeal before the Tribunal who by the impugned order, allowed the appeal and set aside the order passed by the Commissioner whereby he had suspended the licence of the CHA. 3. The Tribunal upon appreciation of the material on record was of the view that the act of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs had passed the order suspending licence of the respondent CHA on the basis of the evidence and material collected in course of inquiry and investigation by the DGCEI, Ahmedabad which was sufficient for the purpose of exercising powers by the Commissioner of Customs under Regulation 20(2) of the Regulations and as such, the Tribunal was not justified in interfering with the same. 5. Referring to the order passed by the Commissioner and more particularly, to the statements of the employee Shri Ravindranath Nair as well as the partner, it was submitted that it was an admitted position that the files had been brought to the office of the respondent by the said employee and as such, the misconduct of the respondent is apparent on the face of the record. It was argued that the act of the respondent CHA of taking the official files to his office amounts to gross misconduct on its part and as such, the Commissioner was justified in confirming the suspension order. It was submitted that large amounts of refund had been obtained by the importers of timber logs by submitting fraudulent refund claims through the respondent CHA and that the respondent having actively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund paid to them, to submit that this gives all the more reason to believe at this preliminary stage of investigation itself that the said claimants were involved in filing fraudulent refund claims. 7. The appeal was vehemently opposed by Mr. Paresh Dave, learned advocate appearing on behalf of the respondent CHA. Dealing with the contention that the Tribunal was not justified in interfering in the matter inasmuch as, there was no breach of the principles of natural justice on the part of the Commissioner of Customs, attention was invited to the impugned order dated 20-5-2010 passed by the Commissioner, more particularly to the operative part thereof, to demonstrate that the Commissioner had after passing the impugned order, directed that the respondent be provided with copies of panchnama dated 18-1-2010, statements dated 22-1-2010 and 8-3-2010 of Shri Ravindranath Nair, employee and statement dated 8-3-2010 of Shri Pravin Nagda, Partner, along with the order. It was submitted that on the face of the order, it is apparent that there was a breach of principles of natural justice inasmuch as, the respondent was not provided with copies of the panchnama, statement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed by the Commissioner prior to passing the order of suspension. It was, accordingly, urged that the impugned order of the Tribunal is just, legal and proper and does not warrant any interference by this Court. 10. As can be seen from the order dated 1-4-2010 passed by the Commissioner whereby he has suspended the operation of the CHA licence of the respondent with immediate effect, the same has been passed in exercise of powers conferred under regulation 20(2) of the Regulations for contravention of clauses 13(d) and 13(h) of regulation 13 of the Regulations; for failure to observe the requirements of regulation 19(8) of the Regulations; as well as for failure as envisaged under regulation 20(l)(a), (b) and (c) of the Regulations. 11. A perusal of the orders dated 1-4-2010 and 20-5-2010 passed by the Commissioner, indicates that the allegation against the respondent is that the investigations were carried out by the DGCEI, Ahmedabad, in relation to inadmissible refunds sanctioned by the refund section of the Customs House, Kandla, on the basis of fraudulent documents submitted by the importers and the CHA firms. According to the department, the respondent CHA al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completing such work by the Custom Officers. The same was also explained to the DGCEI authorities that these files were given to their employee by the officers posted in Refund Section of the Custom House for taking printout/typing of note-sheets, etc., manually draft by Custom Officer." Shri Ravindranath Nair, the employee of the respondent in his statement recorded on 22-1-2010 had inter alia stated that files found from their office were brought to their office for documentation work like preparation of note-sheets and orders, which was a matter of routine practice. His statement recorded on 8-3-2010, is also to a similar effect. The Commissioner in his order dated 20-5-2010 has brushed aside the aforesaid defence of the respondent by recording that there is no evidence to substantiate the same. However, despite it having been the specific case of the respondent CHA right from the inception that the files had been given to their employee by the concerned officers of the refund section for the above referred purpose, there is nothing on record to indicate any inquiry having been made in this regard. Besides, despite the fact that seven files of the department were found from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made in this regard nor is there anything in the order passed by the Commissioner to indicate that the files had in fact not been handed over to the respondent by the proper officer. In the circumstances, prima facie it cannot be said that the respondent has contravened the provisions of regulation 13(h) of the Regulations. 15. As regards the breach of the provisions of clause 19(8) of the Regulations, the same only lays down that the Customs House Agent shall exercise such supervision as may be necessary to ensure that 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. In the present case, the department has not been in a position to establish any act or omission on the part of the employee of the CHA in respect of which the CHA is required to be held liable. 16. Insofar as the provisions of clauses (a), (b) and (c) of sub-regulation (1) of regulation 20 of the Regulations are concerned, prima facie upon considering the material on record, none of the said clauses would be attracted in the present case inasmuch as, the learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for doing so. Upon conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs is required to prepare a report of the inquiry recording his findings. The Commissioner of Customs is thereafter required to furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and require the Customs House Agent to submit any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. The Commissioner of Customs, thereafter, after considering the report of the inquiry and the representation thereof, if any, made by the CHA, is empowered to pass such an order as he deems fit. 18. In the facts of the present case, it is an admitted position that no such procedure as contemplated under regulation 22 of the Regulations has been carried out by the Commissioner. Had such a procedure been followed by the Commissioner, the Deputy Commissioner of Customs or Assistant Commissioner of Customs while conducting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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