9911796707
TMI Blog2015 (4) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said consignments may be cleared by manipulation of 'Marks and Numbers' on the packages or by substitution of packages. On examination of the said consignments, Intel Pentium Microprocessors and IC's (Rs.30,39,950/- CIF), Button Cell of Maxell Sonly (Rs. 14,81,610/-), Artificial Flowers and Game Circuit Board (Rs. 5,88,720/- CIF), LCD Projectors, Data Projectors, Cameras (Rs. 15,66,452/- CIF) and VCD Players, Iron Boxes (Rs. 3,70,000/- CIF) were found and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 42,100/- and got back his CHA licence in the year 1998; that Shri Bharat Bhai approached him for using his CHA licence on Rs. 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 their Customs pass." Thereafter he revoked the CHA licence on the premise that the charges levelled have been proved. Aggrieved by the said order, the appellant is before us. 3. Heard both sides. 4. The learned Advocate appearing for the appellant submitted that with regard to Article of Charges under Regulation 12 of CHALR 2004, no licence shall be sold or otherwise transferred. At the time of investigation of DRI, Shri Dhirubhai Shah made a statement that he is using the licence of the appellant on payment of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 both sides and perused the records. 7. With regard to the Charges leveled under Regulation 12, we find that the appellant has produced the salary certificate, Books of Accounts and the Income Tax Returns showing that Shri Dhirubhai Shah was an employee of the appellant and the facts have not been controverted by the Revenue with any supporting evidence. The learned Commissioner relied on only the statement recorded under Section 108 of the Customs Act by the DRI. The said statement was also retracted by the appellant at the earliest available opportunity within 24 hours. Therefore, the said statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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, which are not supported by further investigations and regarding financial flow or statements from various clients benefit of doubt has to go to the appellant and thus in my view also the Charge under Regulation 12 of the CHALR, 2004 stands not proved. 11. The 2 nd Charge against the appellant is for violation of Regulation 13(a) of CHALR, 2004. The appellant has not given any details about the seizure of the documents from his office/possession by DRI. It is also not clear when the documents were taken away by the Directorate of Revenue Intelligence and whether he has lodged protest or put in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as this charge is concerned; the fact that in the proceedings initiated under the Customs Act, the appellant was not made a part is of no consequence in as much as in the view 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 Rs. 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 consignment seized by the Customs/DRI but is also in relation to past conduct. In my view the CHA has failed to make effective supervision of his employee Shri Dhirubhai Shah and the charge against the appellant under Regulation 19(8) stands proved. 14. In view of the fact that three charges stands proved, invocation of the CHA licence and forfeiture of the entire amount of security is in order. Difference of Opinion In view of the Difference of Opinion in Member (Judicial) and Member (Technical), the matter may be referred to the President to nominate as 3 rd Member to resolve the following issues:- 1. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that M/s Peak Agencies have violated Regulation 13(d) of the CHALR, 2004. Article of Charge - IV. As per Regulation 19 (8) of the CHALR, 2004, a Custom House Agent shall exercise such supervision as may be necessary to ensure proper conduct of any such employees in the transaction of business as agents and be held responsible for all acts or omissions in regard to their employment. Whereas in the instant case it appears that Shri. Dhirubhai Shah an employee of M/s Peak Agencies was actively engaged in abetting mis-declaration of goods by using the CHA licence of M/s Peak Agencies and the CHA management did not exercise any supervisions over him. Therefore, it appears that M/s Peak Agencies have violated Regulation 19 (8) of CHALR, 2004." 3. The ld. Counsel for the appellant CHA M/s Peak Agencies made the following submissions:- (a) The matter pertains to the period 2002-2003 before the CHALR, 2004 came into force. Therefore, the allegation that no proper authorisation was obtained is not sustainable. All the documents and original bills of entry were taken over by the DRI during investigation and the documents were neither produced before the Inquiry Officer nor before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the proceedings are vitiated. At the relevant time, CHALR 1984 was in force but the same was superseded CHALR, 2004 which came into force on 19-3-2004. However, action done or omitted to be done under CHALR 1984 was protected by way of a savings clause except as respect things done or omitted to be done before such supercession. Therefore, proceedings could have been continued under CHALR 2004. Further, the obligations of the CHA were also the same under both the Regulations except that the corresponding provisions were 14(a), 14(d) and 19(7) under CHALR 1984 as against 13(a), 13(d) and 19(8) under CHALR 2004. 5.2 As regards the charges of contravention of Regulations 13(a) and 13(d), both the charges arise from a finding in the order dated 26-11-2005 about alleged mis-declaration of imported goods by the importers mentioned therein wherein the appellant CHA had filed the bills of entry and one of the employees of the CHA Mr. Dhirubhai Shah was found involved in the alleged mis-declaration. Surprisingly, the CHA was not made a party to the said adjudication proceedings. This is quite strange. If the CHA was a party to the transaction and a statement had been recorded to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reasonable doubt. 5.4 The second charge of contravention of Regulation 13(d) flows from the first charge of acting without authorization and not knowing the clients. Since the first charge of contravention of regulation 13(a) has failed, this charge also cannot sustain and I hold accordingly. 5.5 As regards the last charge of not exercising sufficient supervision over the conduct of the employee of the CHA firm, I find that there is some substance in this charge. Both Shri. Dhirubhai Shah and Shri. Vedkumar Kambi, in their respective statements given, have admitted that Mr. Shah was acting on his own and had not kept the employer informed of the various deals undertaken by him in respect of customs clearance of imported goods. In one case, Sri. Shah was imposed with a penalty of Rs. 20 lakhs for his alleged involvement in mis-declaration of imported goods leading to evasion of duty vide order dated 26-11-2005. Therefore, there is sufficient evidence available on record to prove this charge against the appellant. However, for a contravention of Regulation 19(8) alone, revocation of CHA licence is not warranted and the punishment suffered by the appellant of not being able to o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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