9911796707
TMI Blog2012 (9) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of exporter M/s. Suave Chemical (India), Ahmedabad (IEC No. 0810003368). When samples of the goods were drawn and tested at Customs laboratory, Kandla, that proved to be MOP (Muriate of Potash) covered by Srl. No. 132 of Schedule 2 to the Foreign Trade Policy. Such goods being restricted for export those were seized by Customs, Pipavav and investigation commenced. 3. Finding involvement of this appellant in the aforesaid export, it was opined by learned Commissioner, Jamnagar that appellant should be prohibited to transact as CHA at Pipavav Customs for violating Regulations 13(a), 13(d) and 13(o) of Customs House Agent Licensing Regulations, 2004 (hereinafter referred to as 2004 Regulations). Accordingly, that authority in exercise of power conferred on him under Regulation 21 of the said Regulations prohibited the appellant to transact business at Pipavav Customs station with immediate effect in terms of order dated 31.5.2011 and also directed the appellant surrender Customs cards in form F , G and H , if any issued. 4. On the basis of prohibitory order dated 31.5.2011 as aforesaid, learned Commissioner, Jaipur passed an order vide exparte No. 02/CHA/2011 on 17.6.2011 susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any offence in last 6 years in any port for which breach at Jamnagar alleged shall not be a ground to continue with suspension order; (iii) The statement recorded from the proprietor of the Appellant under Seciton 108 need not be heavily relied. (iv) 13 months having been elapsed in the meantime, further suspension is not warranted since the appellant has already under gone suffering; (v) Sub-letting of CHA licence is a financial arrangement and that is not denied for which the appellant finds support of decision reported in 2000 (122) ELT 581. So also reliance was placed on the decision of Hon ble High Court of Bombay in the case of A.M. Ganatra & Co. 2010 (254) ELT 454 (Bom.), approving Tribunal s order reported in 2007 (219) ELT 316 (Tri.-Bom.). Further reliance was placed on the order of the Tribunal reported in 2002 (141) ELT 284 (Tri.-Del.) in the case of Felcon Air Cargo & Travel (P) Ltd., and decision of Tribunal in the case of N.D. Oza & Sons 1999 (106) ELT 412. Emphasis was placed on the order of the Tribunal in the case of Cargo Care 2012 (279) ELT 295 (Tri. Del.) 8. Per contra, submissions of the learned representative of Revenue was that granting a lee way to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt brought out that Customs was persuaded to act on the basis of letter issued by appellant to get H Card in the name of the staff of M/s. Tulsi Logistics (P) Ltd. There was no rebuttal to the test report came out from Customs Laboratory and appellant failed to prove to be stranger to the export of consignment of restricted goods by M/s. Sauave Chemicals (India) valued at Rs. 1.66 crores covered by two shipping bills aforestated. Filing of the shipping bills by the appellant was undenied and its nexus, connection as well as association to the seized goods i.e. MOP (Muriate of Potash) surfaced. Prima facie it was established that there was an attempt to defraud the interest of the country by mis-declaration of the description of the goods which were restricted item under law and export being made under Drawback scheme Revenue s interest was prejudiced. All these material facts dragged the appellant to the interim order of suspension as Revenue administration measure to arrest evasion. 12.1 The very purpose of granting licence under Regulation 9 of 2004 Regulations is to authorize a person to act as CHA on behalf of importers and exporters to occasion import and export of goods at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs; (b) Transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs; (c) Not represent a client before an officer of Customs in any matter to which he, as officer of the Department of Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service; (d) 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, orAssistant Commissioner of Customs; (e) 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; (f) Not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Commissioner of Customs, from a client who is entitled to such information; (g) Promptly pay over to the Government, when due, sums received for payment of any duty, tax or other debt or obligations owing to the Government and promptly account to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 20 may result in revocation of CHA licence and forfeiture of security deposited by him or forfeiture of such security alone. The grounds on which such consequences arise are described in sub-clause (a), (b) & (c) of Regulation 20(1). Sub-regulation (2) of Regulation 20 provides for interim measure of suspension which the Commissioner of Customs may order ex-parte in view of specific provision to Regulation 22(1) within 15 days of receipt of report from investigating authority and such interim order may be confirmed or reversed within 15 days of date of hearing of CHA under Sub-regulation (3) of Regulation 20 granting him opportunity of being heard. For convenience of reading, Regulation 20 is reproduced as under: 20. Suspension or revocation of licence. - The Commissioner of Customs may subject to the provisions 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 of part or whole of security, on any of the following grounds namely :- (a) failure of the Custom House Agent to comply with any of the conditions of the bond executed by him under Regulation 10; (b) failure of the Custom House A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 22 shall not apply in respect of the provisions contained in sub-regulation (2) of regulation 20. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are not admitted by the Customs House Agent. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs House Agent, for the purpose of ascertaining the correct position. (4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Regulation 22 covers 9 months time from the date of receipt of offence report . 12.7 It may be noted that every trial is a voyage of discovery in which truth is the quest. So also, a quasi-judicial enquiry is directed in this manner. Therefore wrongdoers are brought to enquiry through the process of investigation. Immediate suspension of the licence by an ex-parte order within 15 days of receipt of the investigation report from Customs station under Regulation 20(2) is to keep the wrong doer away from the customs station to conduct a fair and uninterrupted investigation. Keeping such aspect in view, limitation for disposal of final proceeding under Regulation 20(1) runs from the date of receipt of offence report but not from the date of interim order of suspension. Cutting short the investigation in the guise of misconceived notion of limitation would be a mockery. 13. In the present case the offence report is yet to reach to the Commissioner of Customs under Regulation 22(1) and crucial date for counting limitation under Regulation 22 being receipt of offence report by the Commissioner of Customs under Regulation 22(1), that stage has not yet been arrived. Interim suspensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 284 (Tri.-Del.) was also cited by the appellant to submit that punishment should commensurate with offence of sub-letting of licence and sub-letting of licence is not grave offence to suspend CHA licence. In the cited order of the Tribunal punishment of revocation was found to be grave in nature and it was held that revocation was unwarranted since CHA had already undergone suffering. When investigation is pending and final order of suspension or revocation is yet to be passed in the present case, the appellant shall not gain from the cited decision. 15.4 Further reliance was placed by Appellant on the decision in the case of N.V. Ohja & Sons vs. C.C., Mumbai, reported in 1999 (106) ELT 412 (Tri.) to submit that delay in enquiry should not result in suspension of licence. In the present case offence report is yet to be reached. The offence alleged in the present case appears to be gravious in nature and investigation should not be interfered by Tribunal. 15.5 Next reliance of the appellant was in the case of Cargo Care vs. CC, New Delhi 2012 (279) ELT 295 (Tri.-Del.) to submit that when the final notice is not issued, CHA licence is to be restored. In that case Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, show cause notice was issued for revocation of licence. Against that show cause notice the appellant went in writ petition to Hon ble High Court of Delhi. That petition was decided by a single Judge restraining Customs authorities from taking further action against the show cause notice proposing revocation of CHA licence till disposal of appeal of the appellant by Commissioner (Appeals). Revenue being aggrieved by the decision of Single Judge appealed before Division Bench of Hon ble High Court. While disposing Revenue s appeal, the Hon ble Bench noticed that Commissioner (Appeals) in the meantime had disposed the appeal of CHA granting partial relief to the CHA observing it was open to CHA to file reply to show cause notice. But CHA having come to the Tribunal against the order of Commissioner (Appeals), the Division Bench observed that Customs authorities while deciding on the show cause notice could not only take into consideration the reply itself but also effect of the order passed by the Commissioner (Appeals). In the meantime, the Tribunal by an interim order had disposed connected stay application of the party for whom CHA acted and also Tribunal dismissed the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpathy. No indulgence can be shown to persons indulging in acts of corruption. The interim order of suspension of the CHA licence by the Commissioner of Customs, should be viewed in the light of the grave and serious allegation of misconduct of the CHA Appellant. Any sympathy on misplaced grounds shall result in excess of exercise of Appellate jurisdiction by the Tribunal [Ref.: Commr. Of Customs & Central Excise, Hydrabad-II vs. H.B. Cargo Services - 2011 (268) ELT 448 (A.P)]. 19. The appellant appears to have allowed its agent exporter to use its licence irresponsibly and thereby actively involved in the fraudulent act in connivance with the exporter. As a name lender to the exporter it caused prejudice to Revenue, making breach of trust and failed to discharge its responsibility under Regulation 13. Affecting the interest of the country was due to reckless and irresponsible behaviour of the Appellant in the course of acting as a CHA licensee. Accordingly interim order of suspension passed by the leaned Commissioner does not appear to be improper since principles of vicarious liability is applicable to the present case in hand. 20. While interim suspension continues due to grav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time. 22. Keeping in view the law and the facts in issue, we direct that: (1). Appropriate SCN be issued levelling charges if any, against the CHA within a period of twelve weeks from the date of receipt of this order, failing which the interim order of suspension shall stand revoked. (2). Even if the interim order of suspension stands revoked under Para 22 (1) above, it goes without saying that it would be open to learned Commissioner of Customs to initiate appropriate proceeding and take appropriate steps against the Appellant in accordance with law. In the result, stay petition is dismissed and appeal is disposed in above terms. 23. [Per : D.N. Panda, Member (J)]. - Tribunal has taken suo motu cognigence of an inadvertent mistake apparent from last sentence of final order at page 28 which was pronounced on 9-8-2012. Stay application in this case was disposed by an order dated 12-4-2012 by the Tribunal rejecting the same and appeal was listed for hearing on 10-5-2012. For no Bench on 10-5-2012 the matter was adjourned to 28-6-2012. On 28-6-2012 appeal was heard and order was reserved. Final order was pronounced on 9-8-2012. In that order there is a repetition of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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