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TMI Blog2011 (4) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... rtified copy of this order. The forfeiture of security deposit shall stand upheld. Thus upon expiry of the said period of one year, the appellant will be entitled to get the CHA licence restored to them against fresh security deposit. - C/882/10 - Final Order No. A/168/2011-WZB/C-I(CSTB) - Dated:- 18-4-2011 - Mr.P.G. Chacko, Mr. Sahab Singh, JJ. For Appellant: Mr. Z.B. Nagarkar, Consultant For Respondent: Mr. K. Lal, SDR Per: P.G. Chacko 1. The stay application filed by the appellant (Customs House Agent) seeks stay of operation of the Commissioner s order whereby their CHA Licence was revoked under Regulation 22 (7) of the Customs House Agents Licensing Regulations, 2004 (CHALR for short) and security deposit was ordered to be forfeited. As we are taking up the appeal itself for final hearing and disposal, the stay application is dismissed at the outset. 2. It appears from the records that the CHA Licence was suspended under Regulation 20 (2) of the CHALR on 20.3.2009 and the suspension was eventually revoked on 12.5.2009. Subsequently, after completing the procedure laid down under Regulation 22, the learned Commissioner of Customs (General) passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved as per Inquiry Report, which was accepted by the Commissioner. The learned consultant for the appellant submits that the aforesaid statements were not voluntary as they were coercively recorded by the investigating agency (DRI). The learned SDR has contested this claim of the appellant by submitting that the statements were never retracted. 5. On our part, we have not found any of the statements having been retracted. Therefore, the statements given under Section 108 of the Customs Act assume full evidentiary value. Mutual corroboration of the statements of Mr. Jaiswar (partner of the CHA firm) and Mr. Rakesh Mehta (proprietor of M/s D.J. International) is quite clear with regard to the handling of the seven import consignments of M/s Satyam Overseas. Though, in both the statements, Mr. Rakesh Mehta was described as an employee of the CHA firm, the fact that Mr. Rakesh Mehta handled the seven import consignments independently and that the Customs duty for the said consignments was collected by him from Mr. Harlalka of M/s Satyam Overseas and paid to the Customs authorities by pay order drawn from the current-account of M/s D.J. International stood conceded by both Mr. Jaisw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the licence was allowed by the appellant to be used by Mr. Rakesh Mehta of M/s D.J. International for clearance of the said consignments for a commission paid to the appellant as consideration for such permission. On these facts, the case law cited by the learned consultant is inapplicable. 7. The next charge against the appellant is that the appellant did not have the authorization of M/s Satyam Overseas for clearing the seven consignments. The Inquiry Officer found this charge also to have been proved and his report was accepted by the Commissioner. The above charge has reference to Regulation 13 (a) of the CHALR. The learned consultant for the appellant submits that there was a contributory default on the part of the Customs officer concerned also. It is submitted that, when the Bills of Entry were filed, the officer should have checked whether the CHA had proper authorization from the importer. It is further submitted that the punishment of revocation of licence is disproportionate to the omission found against the appellant. In this connection, support is claimed from Commissioner of Customs (General) Vs S.S. Clearing and Forwarding Agency Pvt Ltd 2011 (263) 353 (Bom), whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon ble High Court s decision says that there was a contributory default on the part of the Customs Officer in that case. The Hon ble High Court has not exonerated the CHA on this ground from its liability arising under Regulation 13 (a). The contributory default was apparently considered as a mitigating factor in the context of determining the extent of punishment to be meted out to the CHA. Accordingly, their Lordships sustained forfeiture of the security deposit while setting aside revocation of the licence. In the present case also, the appellant can legitimately claim benefit to a reasonable extent from the Hon ble High Court s judgment. 9. The learned Commissioner of Customs also accepted the Inquiry Officer s recommendation for punishing the appellant for breach of Regulation 13 (d) and Regulation 13 (n). Under Regulation 13 (d), a CHA has obligation to advise his client to comply with the provisions of the Act and, in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs. Under Regulation 13 (n), a CHA has obligation to ensure that he discharges his duty with utmost speed and eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dled without written authorization of the importer M/s Satyam Overseas. The conduct of the appellant also led to contravention of Regulations 13 (d), 13 (n) and 19 (8) of the CHALR. Therefore, revocation of the licence and forfeiture of the security deposit cannot be faulted in principle. The question which now arises for consideration is whether any mitigating circumstances exist in favour of the appellant. The learned consultant has prayed for setting aside the revocation of the licence in keeping with the view taken by the Hon ble High Court in S.S. Clearing and Forwarding Agency (supra). In the cited case, what was set aside by the Hon ble High Court was the Commissioner s order cancelling the CHA licence on just one count viz., handling of an import consignment without authorization of the importer. The present appellant has been found to be punishable on more than one count and, therefore, the appellant cannot claim the benefit of the Hon ble High Court s decision. However, the appellant can claim support from the measure of punishment determined by the Hon ble High Court. The learned SDR has canvassed a period of three years, in view of K.M. Ganatra Co vs Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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