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TMI Blog2015 (12) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that Shri Dilip Kumar Sharma, Jetty Sircar of the appellant was deputed to attend to the examination of the container when DRI was carrying out the investigation. CHA was out of business for 8 years but Hon’ble Court while deciding clearly observed that trust between the CHA and the Customs authorities has to be viewed seriously. It was also held that punishment has to be proportionate to the nature and extent of violation. Based on the existing facts in the present appeal before us we hold that appellant was found wanting in discharging his obligations under Regulation 13 (a), (b) & (o) of the CHALR 2004 and accordingly orders passed by the Adjudicating authority under Regulation 20 (1) of CHALR 2004 are upheld - appellant had no knowledge of the contraband nature of the goods substituted in the containers and in view of the ratio of the relied upon case law, punishment for a life time cannot be imposed upon the appellant. We are of the considered opinion that revocation ordered by the Adjudicating authority should be for a limited period. As there is no irregularity committed by the appellant from the date of offence detected by DRI, the revocation ordered by the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrigendum dt. 13/4/15. 2.1 It is the case of the appellant that CHA was approached for the clearance of Export consignment only from Kolkata Port and cannot be held responsible for any substitution of goods done before the containers reached the Docks in Kolkata. That CHA deputed his person at Nepal for witnessing the stuffing of declared export goods and Customs at Nepal put the seals on the containers and endorsed the CTD. That when the containers were brought to Jogbani LCS the Indian Customs checked the sealed containers and found the same to be in order and accordingly endorsed CTD for onward transit of containers to Kolkata Port. That role of the CHA was to start only by filing CTD and other related documents with Kolkata Customs. That DRI intercepted the containers on 29/11/2012 before the containers could be checked and inspected by the CHA. That DRI called for the representative of the CHA for investigation and as per the DRI investigation container seal was tampered and goods substituted between Jogbani LCS and Kolkata port for which CHA is not responsible. That the job of transit between Jogbani and Kolkata was assigned to Freight Forwarder appointed by the Exporter.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Sanjoy Singh nor met him in person. That in view of the above there is clear violation of Regulation 13 (a), 13 (b), 13 (d) 13 (o) of the CHALR 2004 and the appellant never checked from the exporter of goods in Nepal whether Shri Amreek Singh or Shri Sanjoy Singh were their Freight Forwarders. Learned A.R., therefore, strongly defended the order passed by the Adjudicating authority. 4. Heard both sides and perused the case record. The issue involved in these proceedings is whether appellant has violated the provisions of Regulations 13 (a), 13 (b), 13 (d) 13 (o) of the CHALR 2004 inviting revocation of their CHA License. Relevant provisions contained in Regulation 13 of the CHALR 2004 are reproduced below: Regulation 13. Obligations of Customs House Agent- A Customs House Agent shall- (a) obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as Customs House Agent and produce such authorization whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs; (b) transact business in the Customs Station either personally or through an employee duly approved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of goods loaded in container No. IICU-5005028 and IICU-5006024 under CTD No. 356/LC-6/5/12 dt. 23.11.12 and E.F. No. 124 dated-26/11/12. Both containers had entered in NS Dock Kolkata today on 29/11/2012. This work was allotted to me by the owner of my CHA firm Shri Chandan Chatterjee. Container No. IICU-5006024 was laden on vehicle No. NL-02K-9752 while container No. IICU-5005028 was laden on vehicle No. NL-05D-9568. Both loaded vehicle were parked at a place after entry in dock where DRI Officers came and asked me to show export documents. I have submitted following documents voluntarily to the DRI Officers: (i) CTD No. 356/LC-6/5/12 dt. 23.11.12 in triplicate, (ii) Commercial invoice No. OSIA/06/12-13 dt. 23.11.2012 (iii) Packing list dated 23.11.2012 (iv) Certificate of origin 131846 dt. 25.11.2012 (v) Proforma Invoice dt. 16.11.2012 (vi) Kolkata Port Trust documents, Export Clearance dt. 27.11.2012 (vii) Copy of Export Carting order dated 26.11.2012 (viii) Container Bill-CTB 12121830 dt. 27.11.2012. 4.2 Regulation 13 (b) of the CHALR 2004 clearly spell out that transacting of business in Customs station should be either personally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law throws some light on this aspect. In cases where revocation of license has been upheld (i.e. the cases relied upon by the Revenue), there has been an element of active facilitation of the infraction, i.e. a finding of mens rea, or a gross and flagrant violation of the CHA Regulations. In Sri Kamakshi Agency (supra), the licensee stopped working the license, but rather, for remuneration, permitted his Power of Attorney to work the license, thus in effect transferring the license for money. As the CESTAT noted, ..[a]pplicant instead of discharging his functions as a Custom House Agent in accordance with the Regulations, in flagrant violation of those Regulations went to the extent of encashing the facilities made available to him as a CHA by selling it for a price . Moreover, the Power of Attorney was - as a matter of fact actively involved in the fraudulent act in connivance with the importers and others and that as per the Power of Attorney Bond executed by Sri K. Natarajan, all acts, deeds and things done by Sri D. Sukumaran were to be construed as if they were done by himself. Therefore virtually all the fraudulent activities carried out by the Power of Attorney of Thiru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor. There is no finding of any mala fide on the part of the appellant, such that the trust operating between a CHA and the Customs Authorities (as a matter of law, and of fact) can be said to have been violated, or be irretrievably lost for the future operation of the license. In effect, thus, the proportionality doctrine has escaped the analysis. 12. Learned Senior Standing Counsel for the Customs has stressed that the infraction in this case is not a routine matter, but rather, illegal smuggling of narcotics by the G card users. However, given the factual finding that the CHA was not aware of the misuse of the G cards (and thus, also unaware of the contents being smuggled), no additional blame can be heaped upon the CHA on that count alone. Rather, the only proved infraction on record is of the issuance of G cards to non-employees, as opposed to the active facilitation of any infraction, or any other violation of the CHA Regulations, whether gross or otherwise. Neither have any such allegations been raised as to the past conduct of the appellant, from the time the license was granted in January, 1996. Equally, it is important to note that the appellant has - as of today - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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