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TMI Blog2014 (5) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... ulent exporters/operators in claiming and availing undue export benefits. The statement of Shri Amit Prabhudas Pattani the partner of appellant firm was recorded under Section 108 of Customs Act, 1962 wherein he stated that he had given his CHA Licence on rent to ten different persons for monetary gains and that these persons used to seek their own clients, used to charge them independently and used to provide CHA services to their clients independently. He agreed that he had no control on the activities of these persons and that he did not know the clients to whom these persons had provided CHA services. Thereafter statement of Shri Sayed Sattar, one of the Customs Pass holders of the appellant was recorded on 22-3-2010 and 23-3-2010 under Section 108 of the Customs Act, 1962 and statement of Shri Sagar Dattatray Rakshe, the proprietor of M/s. Shri Jayendra International were also recorded. From this it was concluded that Shri Amit Prabhudas Pattani grossly misused his CHA licence for monetary gains and also failed to control his CHA licence and the actions of his employees resulting in gross misuse of the said CHA licence. Due to these acts of omission and commission on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce work and that he has been following the same procedure with the other CHAs whom he engaged for such work and therefore, there is no question of transfer or licence. The contention is that even though as per the statements recorded during the investigation, the licence is said to have been transferred to 10 persons, statement of only one person Shri Sagar Rakshe is relied upon and the statement does not support the case of the department. The contention is that the statements of certain other persons were recorded by the DRI but their statements have neither been referred to nor relied upon. Further the statement of Shri Srinivasan of PSM Logistics was recorded but neither his statement has been referred to nor relied upon. He has also not been listed as a witness. Since the appellant were certain that his statement was recorded during the investigations he was examined as defence witness by the appellant and he was cross-examined by the Presiding Officer during the Inquiry whereby he also produced copies of authorization letters. He has also stated that he has been engaging the services of different CHAs for attending to the customs clearance work and the procedure irrespective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments submitted by the appellant is not as per the documents/information provided by the exporters or their agents. Even Shri Srinivasan during the examination has categorically stated that he used to personally take the clients to the appellant and at that time the partner of the appellant used to explain the provisions of law. The contention is that in this regard no clients of the appellant have been examined at any time during the Inquiry proceedings nor there is no complaint from any of the clients that the appellant has delayed in dealing with the clearance work or that there was any inefficiency on the part of the appellant. On the contrary one of the witness examined during the proceedings stated that he has been giving the work of clearance of about 20 clients and that in these cases there was no complaint of inefficiency. 3.5 So far as the allegation that Shri Sayed Sattar has signed some declaration to be submitted to the department in the case of certain exporters and that there has been a fraud in those exports and the exporters are not available for investigation and he had stated that the partner of the appellant had instructed him to sign such declaration, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that evidence which has been brought on record during the enquiry is relevant and no other evidence can be taken into consideration. The appellant placed reliance on the Hon'ble Supreme Court's decision in the case of M.V. Bijlani v. Union of India and Others - 2006 (5) SCC 88 and in the case of Roop Singh Negi v. Punjab National Bank and Ors. - 2009 (2) SCC 570. 4. The learned A.R. reiterated the findings of the learned Commissioner (Appeals). Further the learned A.R. contented that the statement recorded under Section 108 of the Customs Act, 1962 are admissible as evidence. In support of their contention he placed reliance on the decision of Hon'ble Supreme Court in the case of Naresh J. Sukhwani v. Union of India - 1996 (83) E.L.T. 258 (S.C.), Tribunal's decision in the case of CCE v. Jagdeo Prasad - 2010 (258) E.L.T. 122 (Tri. Del). 5. In his counter learned Advocate appearing for the appellant as regard the decision of Hon'ble Supreme Court in the case of Naresh J. Sukhwani and the Tribunal's decision in the case of Jagdeo Prasad (supra) relied upon by the department submitted that the said judgments relate to the action initiated under the provisions of Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the Inquiry he produced copies of authorization letters. Therefore the allegation against the appellant that the appellant did not obtain valid and a proper authorization letters from their clients and that the provisions of Regulation 13(a) of the CHALR, 2004 have been contravened is not established. 6.4 As regard the charge that the appellant did not advise the exporter to comply the provisions of the act, admittedly, the charge is based on the premise that the appellant was not aware of the importer/exporter as such the appellant was not in position to advise. Since the department could not establish the charge of transfer of licence, the impugned charge also does not survive. Further during the Inquiry Shri Srinivasan stated that he used to take clients to the appellant and at that time the partner of the appellant used to explain the provision of law. Moreover no client has been examined in this case. 6.5 As regard that the charge that the appellant did not discharge the duty with utmost speed and efficiency we find that the appellant has delayed in dealing with the clearance work or that there was any inefficiency on the part of the appellant. Furthermore on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department. If they deposed falsely, they should have been cross-examined. Only because the evidence was totally against the department, the same per se would not mean that they deposed falsely." 6.8 So far as the case laws relied upon by the department in the case of Naresh J. Sukhwani and Jagdeo Prasad (supra) holding that the statements recorded under Section 108 of the Customs Act, 1962 are admissible in evidence without as much as appreciating, we find that the said decision relate to the action initiated under the provisions of the Customs Act, 1962 and the Central Excise Act, 1944, which are entirely different from the proceedings initiated under Custom House Agents Licensing Regulations, 2004. The provisions of the law relating to the Inquiry proceedings under the CHALR, 2004 are specifically framed for the said purpose. Further this Tribunal in the case of Eicher Shipping Agency v. Collector of Customs, Bombay - 1994 (69) E.L.T. 90 (Tri.) wherein it has been specifically held : "10. For the purpose of holding enquiry under the Regulations, specific procedure has been provided for in Regulation 23. When specific procedure is provided for, the general procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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