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TMI Blog2016 (1) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ployee, it is the appellant who is responsible for offence committed by his employee. The impugned order is legal and proper, which does not require any interference. - Decided against the appellants. - Appeal No. C/88223/14-Mum - - - Dated:- 11-12-2015 - MR. P.S. PRUTHI, MEMBER (TECHNICAL) AND MR. RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Anil Balani , Advocate For the Respondent : Shri M. K. Sarangi, J.C., (AR) ORDER Per : Ramesh Nair The appeal is directed against Order-in-Original No 46/2014/CAC/CC(G)/PKA/CBS dated 04/04/2014 passed by the Commissioner of Customs (General), CHA Section (P D), New Custom House, Ballard Estate, Mumbai, wherein the Ld. Commissioner ordered the revocation of CHA License of the appellant and also forfeited of entire amount of security deposit made by the appellant. 2. The fact of the case is that the appellant has a regular CHA License under Regulation 10(1) of CHALR, 1984 (then Regulation 9(1) of CHALR, 2004, now Regulation 7(1) of CBLR, 2013) in Mumbai Customs under a partnership firm with two partners, viz. Shri Prakash Anant Baraskar and Shri Vijay Anant Baraskar. The appellant filed a Bill of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the presence of Shri Vijay Anant Baraskar. It was found that in each of the said three containers, cartons containing garlic were concealed behind stacks of carton containing assorted bath soap and shampoo/conditioner. Of total number of 5731 cartons found, 4890 cartons contained white garlic (each carton containing 10kgs, total weight 48.9 Metric tons) while only 842 cartons contain assorted bath soap, shampoo/conditioner i.e. 85% cargo consisting of garlic. The cartons of garlic round sticker inscribed with what appeared to be Chinese characters was affixed. The goods were seized under a panchanama dated 31/01/2008 and 01/02/2008 and representative samples were drawn which were forwarded to the Regional Plant Quarantine Department and Public Health Department for testing. The department vide the letter dated 05/02/2008 informed that the samples of white garlic were infected with a pest of quarantine significance, i.e. fungus Embellisai al 11; the said letter further informed that import of garlic from China was suspended by the Ministry of Agriculture, Government of India in view of risk of spreading of the said pest found in Chinese garlic; and it was recommended that the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter/authorized CHA. Further the name, signature and cardex number S-2778 of Shri Anish Sachde was seen at the designated place of this checklist. 4. On the above fact which is contrary to the statement by Shri Baraskar, further statement of Shri Vijay Anant Baraskar was recorded on 23/01/2009 under Section 108 of the Customs Act, 1962. After showing him, Appendix A , i.e. format for declaration at service centre for data entry in respect of BoE No. 672466 dated 16/01/2008 which was bearing his signature, name and seal of his company on last page, he agreed that the signature was his and he has signed the said documents. He also stated that he had signed the said documents as per the say of Shri Anish Sachde to whom he has allowed to use his license with mutual understanding. He was getting ₹ 2000/- for every import job on his licence from Shri Anish Sachde. 5. In view of the above primafacie involvement of M/s Baraskar Brothers in the alleged smuggling of garlic, in the independent proceeding under CHALR, 2004, the articles of charges were framed where under it was proposed that the Appellant or CHA is primafacie failed in discharging their obligation as Customs Brok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on oral depositions of Anish Sachde and Vijay Anant Baraskar recorded in the course of inquiry. He submits that Ld. Commissioners reliance on the judgment of Santon Shipping Service and Ashiana Cargo Services which is distinguishable on facts, as there is no contravention of Regulations of CHALR 2004, the Ld. Commissioner failed to appreciate that Regulation 13(a) could be invoked only if there is a complaint by an importer that the appellant was acting without authority. In the instant case, no one has made any such complaint against the appellant. The IEC holder was a friend of Anish Sachde, therefore the appellant cannot be implicated. There is no violation of Regulation 13(d) as the CHA does not have to personally meet the importer. There was no reason to advise the importer. The charge under Regulation 13(e) was also wrongly proved in as much as the Commissioner has admitted that in fact Anish Sachde was an employee of the appellant, but he was pretending to be the CHA before the importer. The finding contradicts the earlier findings that Anish Sachde has CHA licence, and Anish Sachde was the actual importer. The documents were signed by the employee of Baraskar Brothers as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prohibited goods i.e. garlic by mis-declaring the same. He submits that the appellant has sublet the license to one of his employee Shri Anish Sachde and admittedly getting the payment their against. It is admitted fact that the appellant knowingly the offence, signed the documents, therefore the Ld. Commissioner has rightly revoked the licence holding that various charges on the basis of the various regulations which were proved against the appellant. He further submits that the appellant is an habitual offender in as much as this Tribunal in their own case M/s Baraskar Brothers Vs Commr of Customs (Gen), Mum - 2013 (294) ELT 415 (Tri.- Mum) has though allowed the appeal but the appellant was not exonerated from the charges leveled against them. He submits that the appellant does not deserve for any leniency as despite punishment given in the earlier occasion, the appellant indulged into serious offence of smuggling of garlic. 9. We have carefully considered the submissions made by both the sides. 10. As regard the defence made by the appellant that the proceeding is time bar, we find that the Ld. Commissioner in the impugned order has correctly dealt the time bar aspect a ..... 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