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TMI Blog2012 (9) TMI 425X 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, 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 to be cleared without authorization - as the major charges levelled against the appellant stand proved cannot be faulted The CHA Licence of the Appellant shall stand suspended from 19.8.2008 till 30.9.2012 - directions to deposits the security deposit as per the present rules and regulations, with the appropriate officer on or before 30.9.2012 to get CHA licence restored with effect from 1.10.2012 - against assessee. - CUSTOMS APPEAL NO.56 OF 2010, 57 OF 2010 - - - Dated:- 10-9-2012 - J.P.DEVADHAR R.Y.GANOO, JJ. Shri Pallas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Darshan International, Surat and 6 shipping bills of M/s. Kumar Enterprises were filed so as to export the cargo of these two companies through one Mr. Vikas Doshi who represented the said company in the matter of export of the said cargo without any authorization. According to the respondents, on account of this, there was violation of Section 50(1) of the Customs Act, 1962 (For short said Act ). It is also the case of the Respondents that the said goods were over valued/mis-declared. It is noticed that the said goods were intercepted by the officers of the D.R.I. and it was detected that the CHA Licence granted in favour of the said company was used by Mr.Vikas Doshi and said company did not have any authorization on behalf of the exporters. 5. After the cargo was intercepted, action was taken in accordance with law and Show Cause Notice bearing No.DRI/ MZU/ NS/ INV- 05/2007-08/Part-1/223 dated 30.1.2008 concerning cargo of M/s. Darshan International was issued to various persons including Mr.Parmesh, the Managing Director of the said company. By this notice said persons were directed to show cause as to why appropriate action under the said Act should not be taken includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on compliance, shall bring the matter to the notice of the Dy. Commissioner of Customs or Assistant Commissioner of Customs . v) As per Regulation 13(e) of the CHALR-2004, A Custom House Agent shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. 8. The said company contended that the said company has not violated Regulation 12, 13(a), 13(b), 13(d) and 13(e) of the said Regulations. After the said reply, an enquiry under the said Regulations was conducted by the Assistant Commissioner of Customs, Mumbai, Zone 1. It must be mentioned that before issuing the aforesaid show cause notice and at the stage of investigation statements of various persons under Section 108 of said Act were recorded. Statement of Mr.P.S.Parmesh was recorded on 3.1.2008. Statement of Mr. Vikas Doshi who is said to have acted for and on behalf of the said company without authorization was recorded on 4.9.2007 under Section 108 of the said Act. These statements were used in the aforesaid enquiry proceedings. The Enquiry Officer submitted his report in respect of the aforesaid two cases. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company was represented by Mr. P.S.Parmesh, Managing Director of the said company. Learned Advocate Mr. Jetly had represented the Respondents. 14. Mr.Parmesh appearing on behalf of the appellant took us through the enquiry proceedigns, the order in original passed by the Commissioner as also the CESTAT. Mr.Parmesh had tendered in court a separate compilation containing therein statements of various persons recorded in the course of investigation. He had read to us his own statement as also the statement of Mr. Vikas Doshi, who is said to have participated in clearing the consignment in question for export. 15. Mr.Parmesh had submitted that the Commissioner as well as the CESTAT erred in coming to the conclusion that the appellant had violated Regulations 13(a), 13(b), 13(d) and 13(e) of said Regulations. Mr. Parmesh submitted that the necessary documents duly signed by the exporters namely M/s. Darshan International and M/s. Kumar Enterprises were lodged with the customs department and the steps were taken to see that the cargo is cleared. He contended that the cargo was properly cleared through custom. He had submitted that his employee by name Mr. Krishna Nikharge attended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded with effect from 19.3.2009 pending inquiry. He submitted that the said licence was revoked by order dated 22.8.2008. He submitted that considering the relevant dates as of today the said company has stopped functioning the last four years and five months. Mr.Parmesh therefore submitted that the stoppage of business of the company as Customs House Agent be considered as adequate punishment. He therefore submitted that a lenient view be taken an the CHA Licence of said company be restored. 19. Mr.Jetly, learned Advocate appearing on behalf of the respondents opposed the submissions advanced by Mr. Parmesh. He clarified that though the Commissioner had held that charges against the said company under Regulation 12, 13(a), 13(b), 13(d) and 13(e) of the said Regulations are proved, the CESTAT accepted the contention of the said company and decided in favour of the said company so far as Regulation 12 is concerned, and exonerated said company from charge concerning Regulation 12 of the said Regulations. 20. Learned Advocate Mr. Jetly had submitted that before the Enquiry Officer said Parmesh, on behalf of the said company has led evidence. He also pointed out that the inquiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood on a different footing. He, therefore, submitted that though the adjudication proceedings ended in favour of Mr. Parmesh, that cannot be a ground to set aside the order of revocation of CHA Licence and forfeiture of security deposit. He had submitted that as per Regulation 22 of said Regulations, the said Commissioner was empowered to pass order revoking CHA Licence and forfeit security deposit. Learned Advocate Mr. Jetly submitted that the said company was involved in export of in all 6 shipping bills and as such the allegations against the said company were of serious nature and that the said allegations have been duly proved upto the stage of hearing of the matter upto CESTAT. He submitted that the punishment imposed upon the said company is proper and the same should not be modified as prayed for by Mr. Parmesh, the Managing Director of the said company. 23. We have considered the entire record. We have considered the rival submissions. It is noticed that the two shipping bills on behalf of M/s. Darshan International were submitted for clearance of the cargo. Similarly 6 shipping bills were submitted on behalf of M/s. Kumar Enterprises. In the enquiry proceedings, neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding. The said Commissioner has considered inquiry report and all other documents which were placed before inquiry officer. Said Commissioner gave opportunity to Mr. Parmesh to advance his submissions. It is noted that said Commissioner after considering the entire record, came to the conclusion that the said company had violated Regulation 12, 13(a), 13(b), 13(d) and 13(e) of said Regulations. 25. We have considered the record. We are satisfied that appropriate opportunity was given to Mr. Parmesh to represent his case and that the said Commissioner as well as the CESTAT has considered the record in the proper perspective and has rightly held that the said company had violated Regulations 13(a), 13(b), 13(d) and 13(e) of the said Regulations. 26. Having recorded the finding that the said company has violated Regulation 13(a), 13(b), 13(d) and 13(e) of the said Regulations, the said Commissioner was required to pass orders in terms of Regulation 20 and Regulation 22 as regards the enquiry proceedings which were conducted against the said company. The said Commissioner thought it fit to revoke the licence of the said company. He also thought it fit to forfeit the security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this omission, has rendered the said goods liable to confiscation. At best, it can be said to be a technical omission, in the absence of any intention attributed by way of any evidence in the show cause notice 29. These observations were accepted by the Addl. Commissioner of Customs (Export) while deciding the Adjudication Proceeding against Mr. Parmesh, the Managing Director of the said company concerning the cargo of M/s. Kumar Enterprises. We have considered the afore quoted observations for the purpose of deciding whether the the order of revocation of CHA Licence as well as forfeiture of the security deposit should be modified. It is noticed that the said Commissioner has treated the violation of Regulation 13(a), 13(b), 13(e) and 13(e) of said Regulations, a serious act and has imposed punishment. In the wake of the observations quoted above in the adjudication proceedings, we are inclined to hold that the said company can be dealt with in a lenient manner as regards its CHA Licence. We have noted the fact that the said company has been carrying on business as Customs House Agent for a long time and that this is for the first time it is alleged against the said compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the license of a Custom House Agent where an enquiry against such agent is pending or contemplated. REGULATION 22: Procedure for suspending or revoking license under Regulation 20:- (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent stating the grounds on which it is proposed to suspend or revoke the license and requiring the said Customs House Agent to submit, within such time as may be specified in the notice, not being less than forty-five days, to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs of Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, or where no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced by Mr.Parmesh on the question of showing leniency to the said company and we are of the view that in a fit case the order of revoking the CHA Licence can be modified and in its place appropriate order can be passed, so as to impose punishment on Customs House Agent. 32. In view of this we are inclined to hold that the interest of justice would be met if the CHA Licence then held by the said company could be restored in favour of the said company with effect from 1.10.2012. By this arrangement, the said company would be without a CHA Licence from 19.8.2008 till 30.9.2012 which would mean that the total period for which the said company would be out of business will be 4 years and 7 months. As regards the forfeiture of the security deposit, we are inclined to confirm the said order. In our view, the aforesaid arrangement would meet the ends of justice. We will also like to clarify that aforesaid arrangement is restricted to facts of this case and cannot be treated as precedent. 33. Now that we are inclined to restore the CHA licence in favour of the said company, and as the security deposit of the said company has been forfeited, if deposit of security deposit on or before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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