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TMI Blog2015 (2) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... c information the DRI officials detained three consignments and found that one Shri Dhirubhai Shah is using the CHA licence of the appellant for clearance of the mis-declared goods. On the basis of enquiry report, proceedings under Regulation 22 of CHALR, 2004 has been initiated against the appellant and charges were framed under Regulations 12, 13(a) and 13(d) 19(8) of CHALR 2004. After the enquiry report, personal hearing was granted to the appellant by the learned Commissioner who observed as given below:- 3. Acting on a specific information, officers of the DRI, Mumbai identified and detained thee consignments on 31.03.2003 arrived under three different Airway Bills at Air India Light Warehouse, ACC, Sahar showing consignee as M/s Peak Impex, M/s A.K. Traders and M/s Mufema Enterprises with the description of goods declared as Artificial Flowers and Key Chain suspected to contain Computer Parts, Button Cell and Electronic Goods. On further intelligence, two more consignments were intercepted by DRI at ACC on 03.04.2003 and 01.04.2003. 4. The aforesaid consignments were examined without waiting for Bills of Entry to be filed, as available intelligence indicated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A licence of M/s Peak Agencies. He affirmed and confirmed that the statement of Shri Ramesh Gada was correct. He further admitted that the consignments which were cleared by him were misdeclared and Shri Ramesh Gada used to give him ₹ 1 lakh for meeting all expenses of clearances and used to get his commission from the same. He was arrested on 7.5.2003. 8. Shri Ved Kumar Kambil, Prop. Of M/s Peak Agencies, CHA No. 11/896 in his statement inter-alia stated that during the time of suspension of his CHA licence, he met Mr. Bharat Bhai (brother of Dhirubhai) and the said Bharat Bhai had settled the matter with Ganpath Ingle to whom he had taken loan of ₹ 42,100/- and got back his CHA licence in the year 1998; that Shri Bharat Bhai approached him for using his CHA licence on ₹ 5,000/- per month; he agreed to the proposal; that in the year January 2003, CIU Customs, ACC, Mumbai had booked a case regarding under valuation against M/s Rishabh Enterprises run by Dhirubhai, brother of Bharat Bhai; that case was settled after paying a differential customs duty; that he got a wind and told Dhirubhai and Bharatbhai to stop using his CHA licence all together and surrender th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the appellant is for violation of Regulation 19(8) of CHALR 2004. The salary register and the Income Tax return for the relevant period shows that Shri Dhirubhai Shah was an employee of the appellant and the appellant was having full control over Shri Dhirubhai Shah and the said fact has been confirmed during the course of enquiry proceedings. 4.4 The ld further submitted that in the Customs proceedings, a penalty of ₹ 20,00,000/- was imposed on Shri Dhirubhai Shah but the appellant was not made a party to the show-cause notice. The order of imposing penalty also has been stayed by this Tribunal observing that Shri Dhirubhai Shah has not mis-declared the goods as they have not filed Bills of Entry for clearance of the goods. As this Tribunal has already observed that the employee of the appellant i.e. Shri Dhirubhai Shah has not filed any Bills of Entry for clearance of the goods, the question of mis-declaration does not arise. 4.5 In these circumstances, the learned Advocate prays that the impugned order should be set aside. 5. On the other hand, the learned A.R. appearing for the Revenue reiterated the impugned order. 6. Considered the submissions made by bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediate effect. The appeal is allowed in the above terms with consequential relief. (Order pronounced in Court on ...) Per : P.K. Jain 9. I have gone through the order recorded by my learned Brother. However, on certain Charges my views are different as per the details given below. 10. As far as the Charge under Regulation 12 of CHALR 2004 is concerned I agree with the conclusion drawn by my learned Brother. However, I would like to add that the learned Commissioner has relied upon the statements recorded under Section 108 of the Customs Act by the Directorate of Revenue Intelligence (DRI) on 07.05.2003 and 24.06.2003 of Shri Dhirubhai Shah. Only the statement dated 7.5.2003 has been retracted and that also on 12.5.2003. There is no evidence that statement dated 24.6.2003 was ever retracted. Commissioner has relied upon the statement of Shri Ved Kumar Kambil dated 09.05.2003 and that of Shri Ramesh Gada dt. 2.4.2003 and 3.4.2003. There are no evidence that the said statements were retracted. However, keeping in view of nature of the charge and the fact that the appellant has produced the income tax return and other documents as against the oral statement by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy/Assistant Commissioner of Customs. Since I am holding the Charge under Regulation 13(a) is stand proved and in view of the findings of the Commissioner in para 33 of the impugned order, I hold that the Charge under Regulation 13(d) also stands proved. 13. The fourth Charge under Regulation 19(8) of CHALR, 2004. Regulation 19(8) of CHLAR, 2004 provides that a Customs House Agent shall exercise such supervision as may be necessary to ensure the proper conduct of any such employees in the transaction of business as agents and be held responsible for all acts or omissions of his employees. As far as this charge is concerned; the fact that in the proceedings initiated under the Customs Act, the appellant was not made a party is of no consequence in as much as in the views of the investigator, it was Shri Dhirubhai Shah who had done all the manipulation and the appellant has sub-letted his CHA licence. Moreover, the fact that this Tribunal has stayed the recovery of penalty of ₹ 20,00,000/- on Shri Dhirubhai Shah is of no consequence as it is only a prima facie view and is not a final order. Moreover the action proposed against the appellant is not relating to the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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