9911796707
TMI Blog2012 (9) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... he exporter. This document at Exhibit B is not referred to in the order in original dated 22.8.2008 passed by the Commissioner of Customs (General), Mumbai Zone-I and order dated 25.8.2008 passed by the Commissioner of Customs (General), Mumbai Zone-1. Similarly, this document is not referred to in the order dated 12.1.2010 passed by the CESTAT in Appeal Nos.C/1162 & 1202/2008. In view of this, we refrain from answering this question (a). 3. So far as the substantial question (b) is concerned, after hearing both the sides it was noticed that it was alleged by the respondents that the appellant has violated Regulation 13(a), 13(b), 13(d) and 13(e) of the Custom House Agents Licensing Regulations, 2004. (For short "said Regulations"). On account of this, issue no.(b) is reframed as under: (b) "Whether the Tribunal was right in holding that there was a violation of Regulation 13(a), 13(b), 13(d) and 13(e) of the said regulations on part of the appellant? 4. These two appeals can be disposed of by a common order as the point involved therein is common. Few facts necessary for the disposal of these two appeals are as under: The appellant i.e. Shri Venkatesh Shipping Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of said regulations by the said company, a notice of enquiry was issued being Notice No.S/8- 46/2008/ADM/366 dated 9.6.2008 in regard to the two shipping bills of M/s. Darshan International. In regard to the shipping bills of M/s. Kumar Enterprises, notice of enquiry bearing No.S/8- 47/2008/ADM/369 dated 10.6.2008 was issued. Mr. Parmesh in his capacity as Managing Director of the appellant replied to these two show cause notices. 7. In the enquiry proceeding the appellant company had to face following charges. i) As per Regulation - 12 of the CHALR -2004, "every licence granted or renewed under these regulations shall be deemed to have been granted or renewed in favour of the licensee, and no licence shall be sold or otherwise transferred. ii) As per Retgulation 13(a) of CHALR-2004, " A Custom House Agent shall obtain an Authorization from each of the companies, firms or individuals by whom he is for the time being employed as Custom House Agent and produce such authorization whenever required by the Dy. Commissioner of Customs or Assistant Commissioner of Customs". Iii) As per Regulation 13(b) of the CHALR-2004, "A Custom House Agent shall transact business in the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed permanently. He also came to the conclusion that the security deposit submitted by the said company should be forfeited. The said Commissioner therefore on 22.8.2008 passed the following order : "I order immediate revocation of the CHA Licence No.11/560 held by M/s. Shri Venkatesh Shipping Services Pvt. Ltd., and simultaneously forfeit the entire security deposit under the provisions of CHALR, 2004". 10. In so far as the enquiry concerning the cargo of M/s. Kumar Enterprises, the Commissioner came to the conclusion that all five charges leveled against the said company are duly proved. On 25.8.2008, he passed the following order in the second enquiry: " In terms of violation of CHALR of M/s. Shri Venkatesh Shipping Services Pvt. Ltd., (the then CHA) as stated above, the CHA licence merits revocation. However, as the licence has already been revoked vide Order No.43/2008 dated 22.8.2008, and it does not exist, no further order for canceling it again can be passed." 11. The said company was aggrieved by the aforesaid two orders namely Order No.43 of 2008 dated 22.8.2008 and Order No.44 of 2008 dated 25.8.2008. The appellant filed two separate appeals before the CESTAT being Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Adjudicating Authorities did not impose any penalty upon him. Mr.Parmesh had therefore submitted that the finding recorded by the Enquiry Officer should not have been accepted by the said Commissioner as also by the CESTAT . He submitted that the Enquiry Officer erred in passing the orders. As regards contents of the cargo and over invoicing he submitted that the role of the said company was restricted to carting and clearing exported consignment and that the necessary documents were submitted to the custom officers and that the custom officers had examined the said documents and Let export Order was issued. According to him, isssuance of Let Export Order in regard to the cargo was a fact in favour of the said company and on that ground it should have been held that the charges against him in terms of Regulation 13(a), 13(b), 13(d) and 13(e) of the said Regulations are not proved. 17. Mr.Parmesh had submitted that the Commissioner passed an order of revocation of his CHA licence and forfeiting the entire security deposit. He submitted that considering the nature of the allegations against the said company, imposing of the punishment viz. revocation of the CHS Licence perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents that Shri Vikas Doshi was getting the goods cleared from the customs on the strength of the CHA Licence of the said company even though there was no authorization issued in favour of said company duly executed by M/s. Darshan International and M/s. Kumar Enterprises. Mr. Jetly had therefore submitted that the said Commissioner had rightly appreciated the evidence placed before the Enquiry Officer and had rightly accepted the report of the Enquiry Officer. Mr. Jetly submitted that the said Commissioner has rightly passed an order revoking the CHA Licence of the said company as the said Commissioner had held that the said company has violated Regulations 13(a), 13(b), 13(d) and 13(e) of said Regulations. He further submitted that the security deposit of the CHA Company was rightly forfeited. 21. Learned Advocate Mr. Jetly, had submitted that the CESTAT had considered the case of the said company and had accepted the findings given by the said Commissioner and had confirmed the order of the said Commissioner by which CHA Licence of the said company was revoked and security deposit was forfeited. 22. Learned Advocate Mr. Jetly had submitted that it may be true that Mr.Parmesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the exporter through Shri Vikas Doshi. The Annexure B was signed by Shri Parmesh, Managing Director of the said company and that was countersigned by Shri Krishna Nikharge, employee of the said company. It is also noticed that all the documents filed for export were duly accepted and Let Export Order was granted to the said cargo. This is being observed on the basis of what is stated in the order of adjudication passed by the Joint Commissioner of Customs (Export) JNCH Nhava Sheva. This would mean that certain documents necessary to clear the cargo for export were filed. However, the fact remains that the authorization as contemplated in Regulation 13(a) and 13(b) were not filed in respect of the shipping bills of M/s. Darshan International and M/s. Kumar Enterprises. The statements of Mr. Parmesh as well as Mr. Vikas Doshi clearly go to show that Mr. Parmesh or any other employee of the said company were not knowing the exporters i.e. M/s. Darshan International and M/s. Kumar Enterprises. It is seen that Mr. Vikas Doshi, procured the documents from M/s. Darshan International and M/s. Kumar Enterprises and by using the CHA Licence of the said company the cargo was sought t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein. As per the contract, a format for shipping instructions was prescribed by them to Shri Vikas Doshi wherein the necessary columns were to be filled in by the respective exporters and was to be returned by the exporters after being duly stamped and signed. The same was produced. The clearance job for M/s. Darshan International was done after receipt of the shipping instructions and after the various documents like invoices and the SDF form, along with Annexure "B" duly signed by the exporter/exporter's representative was received from the exporter through Shri Vikas Doshi. The Annexure "B" was signed by Shri pallasena Sivaramakrishna Parmesh, Managing Director of the CHA firm and Annexure "C" was countersigned by Shri Krishna Nikharge, employee of the CHA firm, on behalf of the noticees. Thus, the documents were filled by them alone and not by Shri Vikas Doshi. Further, since Shri Vikas Doshi was not authorized by them to undertake any custom clearance job, as has also been averred in the show cause ntice, and the fact that he had no authorization as mentioned in para 10 of the impugned notice, the question of his doing any custom clearance on behalf of M/s. Shri Venkatesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cleared by Mr.Vikas Doshi for and on behalf of the said company. It is true that the authorization contemplated under the said regulation was not produced by the said company. While seeking clearance of consignments of M/s. Darshan International and M/s. Kumar Enterprises for export various documents as mentioned in the portion quoted above were filed by the said company and Let Export Order was also granted. On account of the facts discussed above and in the peculiar facts and circumstances, we are of the view that the orders passed by the respective commissioner to revoke CHA Licence of said company as also to forfeit the security deposit seem to be too harsh. Regulations 20 and 22 of said Regulations are as under :- REGULATION 20: Suspension or Revocation of License:- (1) The Commissioner of Customs may subject to the provisoins of regulation 22, revoke the licence of a Custom House Agent and order for forfeiture of part or whole of security, or only order forfeiture or part or whole of secutory, on any of the following grounds, namely: (a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under Regulation 10. (b) failure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner of Customs declines to examine any person on the ground that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings. (6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than sixty days, any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit. (8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DER i. We do no wish to express any view on the substantial question no. (a). The question no.(b) is answered in favour of the respondents and against the appellant. In the peculiar facts and circumstances and for the reasons mentioned above, the order No.43 of 2008 dated 22.8.2008 passed by the Commissioner of Customs (General), Mumbai Zone-1 and Order No.44 of 2008 dated 25.8.2008 passed by the Commissioner of Customs (General), Mumbai Zone-I, duly confirmed by the CESTAT vide its common order dated 12.1.202 in Appeal Nos.C/1162 and 1202 of 2008 is modified as follows :- The CHA Licence of the Appellant shall stand suspended from 19.8.2008 till 30.9.2012. If the Appellant M/s. Shri Venkatesh Shipping Services Pvt. Ltd., deposits the security deposit as per the present rules and regulations, with the appropriate officer of respondents on or before 30.9.2012 the CHA Licence No.11/560 then held by the appellant shall stand restored with effect from 1.10.2012. If the security deposit is deposited on or after 1.10.2012, the CHA Licence of the appellant shall be restored with effect from the day on which such security deposit is deposited with the appropriate officer of Respondents. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
