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TMI Blog2015 (12) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... e imposing penalty. That should not be lightly interfered with. However, that does not mean that once the orders of the Authorities like Commissioner are capable of being challenged in further appeal, then, the Appellate Tribunal's powers are in any way restricted or circumscribed. In order to render substantial justice and if the Tribunal feels that there is a certain period which has gone by during which the agent has been out of business, then, that is sufficient penalty but such a view cannot be taken in all cases and as a matter of rule. However, that having been taken in this case consistent with the material produced and seriousness of the charges, that we are of the view that substantial question of law cannot be answered in favour of the Revenue - Tribunal's order in the present case shall be construed as substitution of the penalty imposed, namely of permanent revocation of Respondent's CHA Licence with partial revocation from 20th December, 2007 till 3rd March,2011 and forfeiture of entire security deposit - Decided in favour of appellant. - CUSTOMS APPEAL NO.47 OF 2011 AND WRIT PETITION NO.2320 OF 2014 - - - Dated:- 22-7-2015 - S.C. DHARMADHIKARI G.S. KULKARNI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic allegation as to why all the charges should not be held to be proved. 6. It was thereafter the final order dated 20.12.2007 revoking the Customs House Agent Licence was passed. The entire security deposit was forfeited. The appeal preferred by the respondent against this order of the Commissioner has been allowed by the impugned order. 7. Mr. Jetly would submit that the appeal has been allowed erroneously. The punishment of revocation of the licence should not have been interfered with. The Inquiry Officer has exonerated the respondent but the Regulations permit the Commissioner to express his disagreement with these findings in the Inquiry report. Being a Disciplinary Authority, the Commissioner could have disagreed with this report and that is how the disagreement was expressed. When a complete compliance has been made with the principles of natural justice and the charges are grave and serious, then, the order of CESTAT is totally uncalled for and unjustified. Our attention has been invited to the order to submit that the Commissioner has held that there is violation of Customs House Agents Licensing Regulations. Mr.Jetly has taken us through the Memo of charges, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been done by the Tribunal in the present case. Therefore, the appeal deserves to be dismissed. 9. With the assistance of both the learned Counsel, we have perused this Appeal, paper book and all the annexures thereto including the impugned order. A show cause notice was issued under Section 28(1) and 124 of the Customs Act,1962 that is because there was a misuse of DEEC scheme by M/s.Tony Enterprises and M/s.Venture Alloys Electrics (India). The allegations in paragraphs 2 and 3 of the Show Cause Notice pertain to the import and how it was effected. It is alleged as to how M/s.Tony Enterprises were issued 14 advance licences for import of different goods and their values are specified in the notice. Thereafter, a detailed investigation carried out is referred and what has been revealed during the same is then set out. The statements have been recorded of all the concerned persons. As far as the respondent is concerned, what is alleged is that the statement of Mr.Dinesh Prataprao Mehta, Proprietor of Sainath Clearing Agency under whose licence the consignment of Audio and Video Cassettes of Tony Enterprises were cleared, revealed that there were only xerox copies and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter, passed the orderinoriginal. Mr. Jetly has heavily relied upon the order in original and to submit that as the Customs House Agent Licence was used by Mr.Dilip Shah and Mr.Shantaram Dongre on rent basis, these are violations which have been proved and from the statement of Mr. Dilip Shah itself. As far as the second charge is concerned, that is also held to be proved because Mr.Dinesh Mehta was unable to give any details pertaining to M/s.Tony Enterprises. He never dealt with this party. Once he has surrendered the licence or allowed a third party to operate it, then, the authorization has never been produced by the Agent. This charge was also to be held to be proved. Equally, non informing the Competent Officer of the violation of the licence conditions is also a serious lapse according to Mr.Jetly. 13. However, a look at the Tribunal's order reveals that the Tribunal at the first instance on 24.6.2005 had interfered with the suspension though it was a temporary measure. The Tribunal in paragraph (4) of that order held that Shri.Dilip Shah and Shri.Shantaram Dongre's statements must be read completely and they would reveal that they were acting on behalf of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Charge III is concerned, the transportation of the goods diverted by the importer is a matter of post importation. The goods were cleared after completion of Customs formalities. There is nothing which can, then, visit the Customs House Agent, according to the Tribunal, with any consequence once the cleared goods are handed over to the importer. The operations like transportation of goods post clearance as a matter of practice was not done by the Customs House Agent. In the present case, one Mr. Shantaram Dongre who was the employee had arranged for such transportation but, according to the Tribunal, that was not enough to hold that it is the Customs House Agent's obligations under the Regulations and which have been discharged through the employee. In the circumstances, the act of Mr.Shantaram Dongre should not visit the Customs House Agent with an adverse consequence is the conclusion reached. 15. Thereafter, non maintenance of the records and accounts in the prescribed manner and not offering them for inspection of Deputy Commissioner of Customs or Assistant Commissioner of Customs or any other person authorised by them whenever required, was the violation alleged. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the security deposit and maintaining the revocation for that period, the licence can be restored. Our attention has also been invited to the order passed in the case of Commissioner of Customs (General), Mumbai Vs. M.D.Shipping Agency, (2014(299) ELT 257 (Bom.)) . In the case of M.D.Shipping the Division Bench of this Court has not interfered with the Tribunal's order, by dismissing the Revenue's appeal. The Revenue had come in the appeal against the order passed on 31.5.2012 by the CESTAT. The CESTAT had taken the view that the Commissioner's order in original was not justified and restored the licence. We find that this Court found that the approach of the Tribunal was not perverse. A reading of the said order which is reported at 2014 (299) ELT 257 reveals that the charges were more or less identical so also the role of the Agent. This Court in paragraphs 4, 8, 9 has held as under: 4. So far as question (a) is concerned, the grievance of the Revenue to the impugned order is that the finding of the Tribunal is perverse and arbitrary as the clerk working for the respondent CHA in his statement stated that he accompanied the consignment of zinc ingots when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench of Hon'ble Mr.Justice J. P. Devadhar and Hon'ble Mr.Justice R. Y. Ganoo (As Their Lordships as then were) concluded that the Customs House Agent's involvement and his role has been underlined by the Regulations. True it is that the Department reposes faith and trust in him and he has to, therefore, abide by the Regulations. He has voluntarily accepted to discharge the duties and the obligations in terms of the Regulations. He need not assume that post clearance, the party would commit breach of the provisions of the Act, Rules and regulations. However, what we find is that in matters of such nature, the Division Bench found that the penalty is something which could be depending upon the facts and circumstances of each case, the seriousness of violation committed and the role which is attributed to the agent. In a given case even if the charges are held to be proved, if the gravity and seriousness thereof does not require or warrant permanent revocation of the Customs House Agents Licence, then, it is definitely a relevant aspect. It is that approach which the Division Bench emphasized and equally adopted as is clear from the order passed in that case and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that CHA has produced even one authorisation from any of the importer even for previous consignment. Declaration on bill of entry cannot and should not substitute authorisation from importer to CHA to handle his work in Custom Houses. Hence, I am of the opinion that the CHA has violated Reg.13(a) of CHALR 2004. And thereafter he passed the following order: In exercise of the powers conferred under Regulation 22(7) of the CHALR,2004, I hereby order the forfeiture of entire security amount deposited by the said CHA with the Customs Department under the provisions of CHALR,2004. The CHA licence be made operative after deposit of fresh Security Deposit as per CHALR,2004. 11. In the case of Vipul Pranlal Doshi (supra) this Tribunal has considered the decision in the case of Standard Shipping Agency and thereafter held that as under: In the case of Standard Shipping Agency, wherein the Inquiry Officer has held that charges not proved but the Commissioner of Customs (General) has observed that the charges has been proved and thereafter he ordered for making operative of the CHA licence after forfeiture of the security deposit. It is a discrimination with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The Appellate Tribunal's order assigning cogent and satisfactory reasons was held to be based on the peculiar facts and appreciation thereof. In the affidavit in reply it has been asserted that a look at the charges against S.P. Pawar Sons would show that similar are the violations alleged to have been committed by the present respondents. Hence, a different treatment is not warranted. We are of the opinion that the case of S.P. Pawar Sons and the present appellant is more or less identical. Though a larger issue of discrimination in the matter of punishment need not be gone into, what we find is that the consistent view of the Tribunal in such cases and in similar circumstances was not found to be perverse or vitiated by any serious error of law apparent on the face of the record. 22. This Court has consistently maintained that it is for the Authorities issuing the licence to inquire into the allegations of violations thereof and equally into the lapses committed during the operation of the licence. However, they have certain amount of discretion in matters of this nature and equally while imposing penalty. That should not be lightly interfered with. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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