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TMI Blog2015 (12) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment should be commensurate with the offence. This ratio is unexceptionable. It is pertinent to mention that reasonability of the punishment and whether the punishment is commensurate with the gravity of offence is a mixed question of facts and law and needs to be determined in the light of factual matrix of each case. Offense is really grave inasmuch as no authorization was obtained from the exporter, the exporter was found to be non-existent and no due diligence whatsoever was undertaken. In these circumstances mere filing of shipping bills can not be tantamount to authorization more so when the exporter is found to be non-existent. The documents filed by CHA are treated with a certain degree of trust by the Customs and such trust was completely violated in the present case. Nothing can possibly be a graver mis-conduct on the part of a CHA than to file Shipping Bills in the name of a non-existent exporter without making even preliminary enquiries about the genuineness of exporter in the name of which the documents were filed. Such dereliction of duty on the part of a CHA, can potentially have even graver financial/security consequences. Thus the appellant totally failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tri-Mum.) and others to advance the proposition that Customs House Agent (CHA) was not required to obtain authorization directly from the importer and filing of import documents amounted to authorization, (iv) The business for the said consignment was obtained through Shri Chandra Bhushan Dubey a freight forwarder and not directly from the exporter. The appellant was not aware about the exporter but the export documents were received from freight forwarder in good faith. It cited the judgment in the case of M.J. Joshi vs. C.C., Chennai - 2010 (258) ELT 460. It also cited the judgment of the Tribunal in the case of Sanco Trans Limited vs. C.C., Bangalore -1996 (83) ELT 557 (Tribunal) and few others to advance the proposition that for lack of exercise of proper inspection, supervision and diligence, a mere admonition would meet the ends of justice and in the absence of mens rea penalty is not imposable and punishment should be commensurate with the offence. 4. We have considered the contentions of the appellant. It is an admitted fact that the appellant had not taken authorization from the exporter who was found to be non-existent and the goods were found misdeclared and highly ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Customs House Agent which is sought or may be sought by the Commissioner of Customs; (k) maintain records and accounts in such form and manner as may be directed from time to time by a Deputy Commissioner of Customs or Assistant Commissioner of Customs and submit them for inspection to the said Deputy Commissioner of Customs or Assistant Commissioner of Customs or an office authorized by him whenever required; (l) ensure that all documents, such as bills of entry and shipping bills delivered in the Customs Station by him show the name of the importer or exporter, as the case may be, and the name of the Customs House Agent, prominently at the top of such documents; (m) in the event of the licence granted to him being lost, immediately report the fact to the Commissioner of Customs; (n) ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay; (o) verify antecedent, correctness of Importer Exporter Code (IEC) Number, identify of his client and functioning of his client at the declared address by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of a CHA than to file Shipping Bills in the name of a non-existent exporter without making even preliminary enquiries about the genuineness of exporter in the name of which the documents were filed. Such dereliction of duty on the part of a CHA, can potentially have even graver financial/security consequences. Thus the appellant totally failed to discharge its duties as CHA thereby grossly violated Rule 13 of CHALR, 2004. Such serious violation on the part of the CHA can hardly deserve any condonation or leniency. In the case of Worldwide Cargo Movers (supra) [2006-TIOL-424-HC-MUM-CUS], the Bombay High Court apart from upholding the principle of liability of the CHA for the act of its employees went on to observe as under: 27. We have noted what the Tribunal has observed in the impugned order. In our view, the finding given by the Enquiring Officer and thereafter the order passed by the appellant in original are fully justified on the facts of the case. The authorities relied upon by Mr. Kantawala undoubtedly are mostly of the Tribunal. Even the judgment of the Calcutta High Court speaks about the suspension of licence not to be continued indefinitely. Here, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere, (emphasis added). 29. In the circumstances, we allow Customs Appeal No. 37 of 2006 filed by the appellant-Commissioner of Customs since the CESTAT was not justified in setting aside the revocation of the CHA licence in the facts and circumstances of the case and on the material on record. The order of the CESTAT setting aside the order of the appellant-Commissioner of Customs was clearly perverse in law. Appeal No, 37 of 2006 is, therefore, allowed. The order dated 4-4-2006 passed by the CESTAT is set aside and the order dated 17-1-2006 passed by the appellant-Commissioner of Customs is restored . The ratio contained in the above reproduced paras (specially in para 28) is squarely applicable to the present case. Andhra Pradesh High Court in the case of H.B. Cargo Services (supra) [2011-TIOL-198-HC-AP-CUS] in para 16 has also held as under: While great emphasis is placed by Shri C. Kodandaram, Learned Senior Counsel appearing on behalf of the respondent, on the previous unblemished record of the CHA, it must be borne in mind that a single act of corruption is sufficient to award the maximum penalty which under the CHALR, is of revocation of the license (State o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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