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TMI Blog2011 (4) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... feiture of security deposit of Rs. 10,000/- imposed on the CHA is not justified and the same is vacated, appeal is allowed - C/356/2006 - 344/2011, - Dated:- 20-4-2011 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ. Shri S.K. Choudhury, Consultant, for the Appellant. Shri Harish, JDR, for the Respondent. [Order per : P. Karthikeyan, Member (T) (Oral)]. This appeal filed by M/s. Shri Ganesh Shipping Agency, a Customs House Agent, seeks to vacate a penalty of Rs. 10,000/- imposed on it by the Commissioner of Customs, vide the impugned order. The Commissioner had forfeited security deposit of Rs. 10,000/- made by the CHA. Briefly, the facts of the case are that the CHA had replaced the invoice and packing list accompanying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Gazetted Officer of Customs under Section 108 were valid evidence in any enquiry which such officer made in connection with the smuggling of any goods. In the instant case, the investigation pertained to import of goods misdeclaring the quantity and value which concluded in confirming differential duty from the importer. The Tribunal had concurred with the adjudicating authority as regards misdeclaration of quantities under import as well as undervaluation. It was in this background that the employees of the CHA were penalized and their penal liability sustained by the Tribunal though the penalties were reduced. The CHA was liable for consequences of violation of CHALR. 2. In the appeal filed before the Tribunal, the CHA has rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, the learned Consultant for the appellants relied on the decision of this Bench in the case of Ark Logistics (P) Ltd. v. C.C.E., Hyderabad [2010 (261) E.L.T. 648 (Tri.-Bang.)]. It is submitted that in the above decision, the Tribunal had held that the CHA could not be penalized invoking Regulation 19(8) of Customs House Agents Licensing Regulations, 2004 in the absence of any finding that the CHA had knowledge of the acts of omissions and commissions on the part of its employees. 4. The learned JDR appearing for the Revenue submits that an enquiry as envisaged under Rule 23 of the CHALR was properly conducted by the enquiry officer and that it was not mandatory that evidence is gathered from concerned persons. The Commissioner was len ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the approval and blessings of the CHA. Considering the submission that the CHA had a good track record in different ports for about 25 years we feel that the penalty on the CHA imported in para m of the Order is not justified. The same is set aside. 6. We find that in the Thakkar Shipping Agency case (supra) dealing with the revocation of licence of a CHA, the Tribunal had vacated the order of the lower authority finding that penal proceedings under the Customs Act against the CHA had been dropped. The allegation against a CHA boiled down to his mis-conduct from the point of view of his abetment in smuggling. When such charge was dropped, it could not be held that the CHA was guilty of mis-conduct unbecoming of a CHA. 7. Dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in accordance with the relevant orders, we hold that the benefit of the finding of the Tribunal in relation to Regulation 19(8) of CHALR, 2004 in the Ark Logistics case (supra) has to be extended. For clarity of the settled position in this regard, we reproduce the following paragraphs from in the Ark Logistics order : 10. Learned adjudicating authority has overlooked the fact that Shri Nageshwara Rao clearing executive of the appellant was doing improper activity or the acts of omissions and commissions without the knowledge of the CHA. In the absence of any findings that the CHA had knowledge of such acts of commissions and omissions on the part of their employee, provisions of Regulation 19(8) cannot be pressed into service against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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