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TMI Blog2015 (4) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the consignment. On 25-8-2010, unsealed containers on a trailer with the export goods were carted into the CFS. When the goods were de stuffed for examination, some of the goods were found to be non-basmati rice (prohibited goods) concealed behind the bags of dal husk. It was claimed by the appellant that on being informed by his employee Shri Ramdas Gadge about this incident, the Director Sohel Kazani informed the CFS and Commissioner of Customs on the next morning about the incident, investigations were undertaken by the Customs which resulted in the suspension of the CHA license under Regulation 20(2) of the Custom House Agent Licensing Regulations (CHALR) vide order number 32/2010, dated 8-12-2010 passed by the Commissioner of Customs, Mumbai. Thereafter the Commissioner of Customs vide his order number 37/2010, dated 14-2-2011 revoked the suspension order pending enquiry under Regulation 22 of the CHALR, 2004. The appellant was issued notice on 25-7-2011 under Regulation 22 for violation of Regulations 13(a), 13(d), 13(e), 13(n) and 13(o). During the enquiry proceedings, the presenting officer cross-examined the persons concerned. On completion of cross-examination and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity letter supported by the certified copy of IEC No. of the exporter which was found correct on the DGFT website and therefore, there was no reason for them to make further enquiries. Regarding the violation of Regulation 13(n) which requires the CHA to discharge duties with speed and efficiency, the plea is that they did not attempt to obtain the let export order on the same evening when the goods were carted in. The enquiry does not show that any specific Customs officer was asked to expedite the let export order. On the finding that the appellant is a habitual offender having been penalised vide order dated 19-2-2013 issued by the Commissioner of Customs, it was submitted that Hon'ble Tribunal vide order numbers S/730-732/2013/CSTB/C-I, dated 6-5-2013 has granted stay. 5. The learned AR appearing on behalf of Revenue reiterated the findings of the Commissioner. On the contention of the learned Counsel that the appellant had no prior knowledge of prohibited goods were being exported, he stated that mens rea is not necessary to be established in cases of offences under the Licensing Regulations. The ld. AR relied on the judgment of Bombay High Court in the case of Delta Log ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als of the person who pretended to be a representative of the exporter nor did he verify personally from Shri Nadel Khan about the identity of Shri Anand, he obviously could not have given any advice to the exporter. Neither can it be said that the appellant made a genuine effort to find out the real exporter to whom advice could and should have been tendered. The inquiry officer in his report has referred to Para 22 of the Commissioner's order 37/2010, dated 14-2-2011 stating that "The culprit Mr. Anand Khursiza who was arrested has nowhere implicated them in his statements recorded by SIIB. In absence of the same it cannot be said that the CHA was either having knowledge or had any connivance in the matter. Moreover, it is evident from the letter dated 21-9-2010 issued by SIIB(X), JNCH that the SIIB Department was satisfied about the innocence of the CHA and therefore, it was mentioned in the said letter that if he fails to bring the exporter before the investigating officer a serious view against the CHA would be taken". We find that this is only a preliminary finding of the Commissioner pending the detailed inquiry under Regulation 20. The question is not whether the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4 Regarding the last charge of violation of Regulation 13(n), we find that the appellant did not verify the antecedents of the exporter. It would be very naive on the part of the exporter to believe any person who comes forward with the IEC number of an exporter. Obviously any one can get hold of an exporter's name and IEC number, forge authorizations of the exporter and then present the papers to a CHA for Customs clearance. The CHA cannot be exonerated of the serious mistake committed by him in not making true efforts to verify the credentials of the exporter. The CHA could have simply lifted the telephone and made an effort to speak to the exporter. The violation of Regulation 13(n) is certainly proved. 7. It was strongly argued by the ld. Counsel that the IO had dropped all the charges, whereas the Commissioner established all charges to be true. We have gone by the facts of the case and have come to the conclusion that the charges are proved except the charge of violation of Regulation 13(o). In the case of Delta Logistics (supra) it was held by the Mumbai High Court that the Commissioner, being the deciding authority under the Regulations, can differ with the Inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Madras High Court decision in the case of Sri Kamakshi Agency v. Commissioner of Customs, Madras - 2001 (129) E.L.T. 29 (Mad.) in which the Hon'ble High Court held that "the grant of license to a person to act as Custom House Agent is to some extent to assist the department with the various procedures such as scrutinizing the various documents to be presented in the course of transaction of business for entry and exist of conveyance or the import or export of the goods. In such circumstances, great confidence is reposed in a Custom House Agent. Any misuse of such position by the Customs House Agent will have far reaching consequences in the transaction of business by the Custom House officials. Therefore, when the applicant who had thirty years of experience as Custom House Agent, when he paved the way for his Power of Attorney to indulge in serious malpractices which ultimately resulted in loss of revenue to the Customs House to the extent of more than 80 lakhs, there is every justification in the respondents in treating the action of the applicant as detrimental to the interest of the nation and pass the final order of revoking his license ----". 8. The ld. Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that Bombay High Court in the case of Delta Logistics (supra) held that " ....it would not be possible to hold that if the inquiry report is in favour of the CHA, the Commissioner cannot pass an order against the CHA even if the Commissioner disagrees with the inquiry report...". We find that in the present case the Commissioner has given reasons for arriving at his decision. 9. The appellant also referred to the case made under the Customs Act relating to the same consignment whereby the penalty on Shri Sohel Director of appellant was set aside by Commissioner (Appeals) vide order dated 26-6-2014. We note that the appellants' Director was let off on the ground that he did not have prior knowledge about the smuggling of Basmati Rice. But in the present case, the issue is that the appellant has violated the CHALR Regulations as held by us. The serious negligence resulted in an attempt to smuggle prohibited goods. 10. In view of the above discussions, we find the appellant is guilty of violating the CHALR Regulations. However we also hold the view that the appellant cannot be disabled permanently for the violations as that would deprive him of his source of liveliho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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