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TMI Blog2015 (7) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... e informed that this order has not been appealed against and has become final. Thus the order of the adjudicating authority in the customs proceedings also support the department's case in the CHALR proceedings. Therefore, we do not find any fault in the conclusion drawn by the Licensing authority that the appellant CHA had contravened the provisions of Regulation 13(a), (d) and (e) of CHALR, 2004. Whether the punishment of revocation of licence is proportionate to the gravity of the offence committed - Held that:- goods sought to be exporter were banned items. The exporter was found to be fictitious and not existing in the address given. Thus the facts are different and distinguishable. As regards the reliance on Ashiana Cargo Services decided by the hon'ble High Court of Delhi, in the said case there was a concurrent finding by the Licensing authority and the Tribunal that the CHA did not have knowledge that illegal exports and smuggling of narcotics was effected using G cards given to the employees of another firm. In that context, it was held that revocation is not justified. In the facts of the case before us, it is the appellant's Manager who was found abetting the illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t obtaining proper authorisation from the exporter before undertaking the transaction, Regulation 13(d) not advising the client to comply with the provisions of the Customs Act and in case of non-compliance, not bringing the matter to the notice of the Asst./Dy. Commissioner of Customs, and Regulation 13(e) for not exercising due diligence to ascertain the correctness of any information which he imparts to a client with reference to the work related to clearance of cargo or baggage. The inquiry proceedings were completed and the inquiry officer found the charges to be proved. Thereafter, a copy of the enquiry report was furnished to the appellant CHA for his defence submissions and after considering the submissions, the Commissioner of Customs (General), the licensing authority, has revoked the CHA licence of M/s Ajay Clearing House. Hence the appeal before us. 3. The Ld. Counsel for the appellant made the following submissions. 3.1 The matter had come up before this Tribunal earlier when the CHA licence was under suspension and vide order No. A/200/08/WZB/CSTB/C-I dated 29/2/2008, this Tribunal had revoked the suspension while allowing the department to conduct/continue with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnivance of the CHA in the illegal export of a banned item. Further in the customs proceedings pertaining to the said transaction, a penalty of RS.50,000/- has been imposed on the Manager of the CHA firm Mr. Prakash Charatkar, which decision has not been appealed against and has thus become final. In this factual scenario, it is his submission that the penalty of revocation along with forfeiture of security deposit is justified. Accordingly he pleads for upholding the impugned order. 5. We have carefully considered the submissions made by both the sides. 5.1 We have perused the enquiry officer's report. The said report gives the details of the enquiry proceedings conducted date wise, details of the departmental witnesses examined and cross-examined, details of other witnesses examined an cross-examined, the presenting officer's brief and the inquiry officer's findings and conclusions. A copy of the said report has also been given to the appellant CHA for their comments. The enquiry officer has concluded that all the charges imputed against the appellant CHA stood proved. All these have been forwarded to the Licensing authority for his consideration. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is clear that the appellant CHA had completely failed in following the CHALR provisions. Thus the contravention of regulation 13(a) which mandates that the CHA should have a proper authorisation to transact the business on behalf of the importer or exporter, as the case may be, stands clearly established. The second charge of contravention of regulation 13(d) of advising the client to comply with the provisions of the Customs Act and in case of non-compliance to bring the matter to the notice of the Customs Authorities is also established for the reason that to advise the client, the CHA should know the client. In the present case, they have not met the client at all and they have received the documents through a freight forwarder. Therefore, the question of advising the client would not arise at all. As regards the third charge of not exercising due diligence in ascertaining the correct of the any information, to undertake this task, the CHA should know his client. If he does not know who the client is, he cannot exercise any diligence in ascertaining the correctness of the information furnished. Therefore, the charge of contravention of regulation 13(e) also stand clearly estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified. In the facts of the case before us, it is the appellant's Manager who was found abetting the illegal exports of a banned item. Further the exporter was also found to be fictitious. Thus the facts involved are different and distinguishable. So is the position in respect of the various decisions of this Tribunal relied upon by the appellant. It is a settled position in law that a ratio of a decision would apply only when the facts are identical. In Alnoori Tobacco Products Ltd. case [2004 (170) ELT 135 (SC)] the hon'ble apex court held as follows:- ..........Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to carry on his business or profession, it is subject to reasonable restrictions and conditions. In the present case, those conditions were already stipulated. In the case of ArvindBhagat (supra), the order of Madras High Court has been left undisturbed by the Apex Court. It was a case where the CHA had failed to discharge his obligation to exercise proper supervision. In the case of Sri Kamakshi Agency (supra), the CHA was held responsible for the fraudulent activities of a third party whom it had delegated its functions. That was also left undisturbed by the Supreme Court. The present case is some what similar to one of Sri Kamakshi Agency, if not worse. Here, the CHA has brazenly defended his Regulation 8 employee who gave a fake name of his brother as an importer for undervaluing the imported car. Thus, the employee of the CHA was party to the Firm. The CHA has not disowned him and has, in fact, defended him in the reply filed by him before the appellant. That being so, he is clearly responsible vicariously. 18. In our view, the Tribunal has committed a grave error in interfering with the decision of a domestic authority. In a departmental proceeding one has to see whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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