9911796707
TMI Blog2016 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... alia verify present and permanent address in full, complete and correct which the appellant did not do. The Custom House Agent is obligated to inter alia verify antecedent, correctness of Importer Exporter Code, identity of the importer and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information but the appellant has not even claimed that it had ever verified the existence of the importer at the given address which means the appellant has failed to fulfil the requirement of Regulation 13(o) ibid. Violation of Regulation 22 of CHALR, 2004 - Held that: the appellant had not taken the point of time bar before the High Court and therefore by the doctrine of constructive res j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of 5051 kgs. On further enquiry M/s Nikhaar Associates in the name of which the bill of entry was filed was found to be non-existent at the address given. Investigations also revealed that the appellant had not conducted due diligence required of a custom broker. Accordingly, the impugned order was passed for violation of Regulations 13 (e) and 13 (o) of CHA Licensing Regulation, 2004. 3. The appellant has contended that : (i) The time limits prescribed in the Regulation 22 of CHALR, 2004 have been violated and therefore the proceedings are not sustainable as has been held in the case of A.M. Ahamed Co. Vs. CC- 2014 (309) ELT 433 (Mad.). (ii) It has not contravened the provisions of Regulation 13(e) as it did not impart a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the importer M/s Nikhaar Associates. It is also a fact that the importer was found to be non-existent. CHA Regulation 13(e) state that - a CHA shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage . In the present case, there was no question of the appellant being in a position to impart any information to the client as the same was found non-existent. Also the weight of the container for which it filed bill of entry was in excess by 7.280 tonnes over the declared weight (5.051 tonnes) which should have come to the appellant s notice had due diligence been exercised. Thus the allegation of violation of Regulation 13(e) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of column 3 relating to features to be verified because if that was so, then there was no need to have column 3. As seen from Regulation 13 (o) quoted above, the Custom House Agent is obligated to inter alia verify antecedent, correctness of Importer Exporter Code, identity of the importer and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. The appellant has not even claimed that it had ever verified the existence of the importer at the given address. Obviously, the appellant failed to fulfil the requirement of Regulation 13(o) ibid. 6. The appellant is right in contending that the time line prescribed in Regulation 22 ibid have been violated in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court apart from upholding the principle of liability of the CHA for the act of its employees went on to observe as under : 27. We have noted what the Tribunal has observed in the impugned order. In our view, the finding given by the Enquiring Officer and thereafter the order passed by the appellant in original are fully justified on the facts of the case. The authorities relied upon by Mr. Kantawala undoubtedly are mostly of the Tribunal. Even the judgment of the Calcutta High Court speaks about the suspension of licence not to be continued indefinitely. Here, we are concerned with revocation which has been resorted to after a due enquiry. We are conscious that the punishment has to be commensurate with the misconduct an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfied if an outsider Tribunal interferes, its findings and order will be improper and perverse which is what has happened in the present case. Similarly when one comes to the disciplinary measures, one must not lose sight of the fact that the appellant-Commissioner of Customs is responsible for happenings in the Customs area and for the discipline to be maintained over there. If he takes a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or his employees. The decision is best to be left to the disciplinary authority save in exceptional cases where it is shockingly disproportionate or mala fide. That is not the case here. (em ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
