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TMI Blog2016 (1) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned - “not valid for Customs’ work”. Save and except venial breach on part of CHA under Regulation 13(n) of the CHALR, no other Articles of Charges are proved against the appellant CHA. - Consequently, the license of the CHA is restored forthwith and the balance amount of security deposit forfeited by the impugned order shall be re-credited to the CHA’s account. Thus, the appeal is allowed in part in the above terms. - Decided partly in favor of appellant. - C/85063/2015-Mum - Final Order No. A/3263/2015-WZB/CB - Dated:- 7-10-2015 - Shri Anil Choudhary, Member (J) and P.S. Pruthi, Member (T) Shri S.N. Kantawala, Advocate, for the Appellant. Shri S.J. Sahu, Assistant Commissioner (AR), for the Respondent. ORDER [Order per : Anil Choudhary, Member (J)]. - This is an appeal filed by the appellant, M/s. Dakor Clearing Shipping Pvt. Ltd., against Order-in-Original No. 114/CAC/CC(G)/SRP/CBS (Admn.), dated 19-11-2014 passed by the Commissioner of Customs (General), Mumbai whereby the CHA licence of the appellant has been revoked. 2. The brief facts of the case are that the appellant is holder of the CHA Licence No. 11/954. They have been granted CHA Licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded on 21-11-2008 under Section 108 of the Customs Act, wherein he stated that Salim Lalani had visited his office with the proposal of handling clearances of import of consumer goods from China; that Shri Salim asked him to clear the consignments through the CHA firm and agreed to pay ₹ 10,000/- to ₹ 12,000/- per job; that he allowed Salim Lalani to clear the goods for their clients under his CHA firm; that Salim brought 24 jobs of clearance of import consignments of various importers during the period 28-9-2008 to 4-10-2008; that since they filed the documents with the Customs online, Salim Lalani had given him documents like authorization, invoice, packing list, Bill of Lading, IEC code and GATT declaration of the respective importer; that the follow up and clearance related work like group passing, examination and delivery were handled by Salim Lalani through his persons namely, Vinod Manjrekar, Siraj Lalani and Feroz Lalani; that he did not interact with the individual importer/party whose jobs for clearance was brought by Salim Lalani; that he was aware that 9 of the IEC holders namely M/s. Carol Enterprises, M/s. Catelite Enterprises, M/s. Fedex Traders, M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees in regard to their employment. 2.6 The Inquiry Officer submitted his inquiry report vide letter dated 8-7-2014 wherein he held all the six charges as not proved against the CHA. The findings of the Inquiry Officer are as under :- (i) The Inquiry Officer has stated that prima facie the Presenting Officer while making his submission that all the charges has been proved had squarely relied upon the confessional statement made by Shri Nimesh Jayantilal Joshi, MD of M/s. Dakor Clearing Shipping Pvt. Ltd., Shri Salim Lalani, Shri Javed Lalani and Shri Vinod Manjerekar recorded under Section 108 of Customs Act, 1962 during the course of preliminary investigation conducted at the time of registering cases against certain importers by the officers of DRI, by taking the support of some case laws. The case laws referred to, no doubt speak that the confessional statements given voluntarily shall have evidential value. Against this version of the Presenting Officer, the charged CHA has contested that the persons concerned were neither examined nor cross-examined in the Enquiry proceedings, hence their statements shall not be taken into consideration. The inquiry off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order, held that the Inquiry Officer has miserably failed in bringing out the correct facts to the notice of the disciplinary authority, as the CHA has failed in performing their duties and committed various acts which display their lack of adherence to the CHALR, 2004 and are found to be culpable for violation of the impugned regulations of CHALR, 2004. He also held that the CHA deserves punishment proportionate to violations of various provisions of CHALR, 2004. Accordingly, in exercise of the powers conferred under Regulations 22(7) and 20(1) of the CHALR, 2004, the Commissioner ordered for revocation of the CHA License of the appellant, M/s. Dakor Clearing Shipping Pvt. Ltd., with immediate effect and also ordered for the forfeiture of entire amount of Security Deposit. 2.8 Being aggrieved, the appellant-CHA is in appeal before this Tribunal. 3. The learned Counsel for the appellant submitted that on 4-3-2009, the CHA licence was suspended by an ex parte order by the respondent. The licence continued to remain under suspension and the charge-sheet under the Regulations came to be issued on 8-6-2009. Pursuant to the completion of the Inquiry, the Presenting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others and Company has passed an adjudication order dated 18-7-2014, following the same principle of law. 3.3 The appellant also relied on the ruling of Hon ble Madras High Court in the case of Commissioner of Customs, Chennai v. CESTAT, Chennai reported in 2014 (310) E.L.T. 673 (Mad.), the Division Bench of the Hon ble Madras High Court has inter alia held that there has to be strict compliance of time-limit to complete the inquiry under the CHALR, which is to be completed within the stipulated period of 9 months from the date of Offence Report. The CHA inquiry has not been completed within the stipulated time-limit and on this ground also the impugned order requires to be set aside. The appellant therefore, prays that since the impugned order is passed after almost 6 years from the date of suspension order i.e. on 19-11-2014, whereas the suspension order was passed on 4-3-2009, the fundamental right to do business has been restricted for this entire period, and the case is not falling under the category of the rarest of the rare cases or serious moral turpitude, which would entail revocation of the CHA licence, this Tribunal may extend it s mercy on the appellant CHA. 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. Further, no discrepancies have been found by the Customs authorities in the documents filed by the appellant-CHA. So far the mis-declaration is concerned, as regards the goods under Bill of Entry, it has no way come on record that the same was with the knowledge or abetment of the CHA. Further, no case of violation of Regulation 13(d) of CHALR has been made out, which requires the CHA to transact business in the Customs Station either personally or through its employees duly approved by the Customs authorities. 5.2 So far Article of Charge under Regulation 13(n) is concerned which provides that the CHA shall conduct and/or discharge his duties with the utmost speed and efficiency and without avoidable delay, we find that the clearance work was undertaken only after receiving the authorization. There is no case of any slackness on part of the appellant-CHA save and except the authorization for clearing work on behalf of the importer was through the intermediary and did not make any attempt to personally meet the importer. Thus, we find that there is a venial breach of the provisions of Regulation 13(n) of the CHALR. None of the importers have been found to be fake or non-exi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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