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TMI Blog2012 (12) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has arranged the transportation of the goods and goods have been handed over to the representative of the importer at Kalamboli Weigh Bridge where the appellant had asked to deliver the goods to the importer. This fact has been confirmed by the transporter during the course of their statement recorded, therefore, the allegation that appellant was actively involved in the diversion of the goods is not sustainable - allegation leveled against the appellant for violation of Regulation 13(d), (e) and (n) of CHALR 2004 is not sustainable - in favour of assessee. - C/417/11 - S/1239/12/CSTB/C-I, A/656/12/CSTB/C-I - Dated:- 9-10-2012 - Mr. Ashok Jindal And Mr. P.R.Chandrasekharan, JJ. Appellant Rep by: Shri Prakash Shah, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany and documents of Kanakratna Steel Sun Impex were prepared on the basis of High Sea Sales contract; that import was in the name of these companies and the goods ultimately were delivered to them only; that Reliance Stainless Steel used to place orders in the name of M/s. Chanakya Impex and Shri Rakeshbhai of Reliance Stainless Steel would send money through Shri Lalitbhai for release of documents; that all imports were done by three companies and he used to get premium of Rs.15 to Rs. 17 per kg; that he used to handover the import documents from the Bank to Lalitbhai who did clearance from Customs and hand over the goods to the above companies; that Shri Jabarmal, Proprietor of M/s. Kanakratna Steel and Sun Impex used to send the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is duty as CHA with utmost speed and efficiency and without delay as per Regulation 13(n) of CHALR 2004 (c ) He failed to exercise due diligence to ascertain the correctness of any information which imparts to a client with reference to any work related to cargo or baggage as per Regulation 13(e) of CHALR 2004 After article of charge were issued, enquiry officer was appointed. After conducting the enquiry, the enquiry officer found that the charge under Regulation 13(d) was not proved and charge under Regulation 13(e) was partly proved and charge under Regulation 13(n) is repetitive of the charges earlier framed. Thereafter, personal hearing was granted to the appellant by the Commissioner of Customs (Gen), Mumbai who finally held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the importer was not in the knowledge of the appellant. Therefore, they cannot be held that the appellants were having any knowledge of diversion of goods. Therefore all the charges framed against them are not sustainable as appellant has acted as Custom House Agent within the purview of CHALR, 2004. He further submitted that all the allegations has been held against the appellant on the basis of the statement of Shri Mohan Shah, the director of M/s.Chanakya Impex. Shri Shah did not participate in the enquiry proceedings before the enquiry officer, therefore, the statement of Shri Shah cannot be relied on as Shri Shah did not appear for cross examination or further investigation. He further submitted that the proceedings under CHALR 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in detail. 7. We find that in this matter, for initiating proceedings under CHALR 2004 there are two allegations: a) the appellant was actively engaged in the transaction of High Sea Sales and b) the appellant was actively involved in diversion of goods. The High Sea Sales agreement at the time of clearance was examined by the officers who cleared the goods and there is no allegation that the said agreement is fabricated one entered by the parties to the contract. Further, the High Sea Sales agreement have been executed prior to imports, therefore, proceedings under CHALR 2004 cannot be initiated for this act of the appellant. 8. Further, we have examined the statement recorded. The appellant has nowhere stated that the appellant was i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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