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TMI Blog2016 (9) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... lia dated 16.10.2010) Shri Kamal Inder Raj Gurnani was attending the Customs clearance work in the name of appellant CHA firm. Shri Gurnani was holding H Card of the appellant and used to pay Rs. 900 per 200 foot container to the appellant. The DRI seized mureate of potash (MOP) attempted to be illegally exported and out of the seized quantity, Shri Gurnani had filed shipping bills No.116 9823 and 116 9824 both dated 29.04.2010 for 175 M.T. of MOP. Export of MOP is restricted and Shri Gurnani admitted in his statement that the exports in the name of M/s. Dadi Impex were being attended to by him as the appellant CHA s H card holder and that the Managing Director of M/s. Dadi Impex had told that he wanted to export MOP in the guise of salt and would give payment of actual expenses + Rs. 20,000/- per container. The Commissioner held the CHA appellant guilty of violation of provisions regulations 12, 13 (a) 13 (b), 13 (d) 13 (0), 19 (5) and 19 (8) of CHALR/ 2004 and passed the order as above. 3. The appellant essentially contended as under:- 1) Principles of natural justice have been violated inasmuch as the cross examination of Shri Gurnani was not allowed. 2) It did not authoriz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills on RES export (software used for uploading S/Bs and B/Es in ICEGATE) and get it cleared and submit the same to the Container Line; * he had understanding with CHA Shri Gurusharan Singh Walia for Rs. 900/- per container for the export through Kandla Port. * he had H card of CHA firm M/s. Gursharan Singh Walia, but he did not receive salary from them, instead, he used to pay Rs. 900/- per 20ft. container to Shri Gursharan Singh Walia. * Shri Gurusharan Singh Walia is the Director of CHA firm M/s. Gursharan Singh Walia, A-213, Saraswati Nagar, Basni, Jodhpur. At Kandla, no one insisted for signature of CHA and at Mundra Shri Asif, a G Card Holder used to sign the documents on behalf of CHA M/s. Gursharan Singh Walia; * he was using the said CHA licence for clearances of goods of his parties and billing through his firm M/s. Glorex Shipping Services, which amounted to sub-letting of CHA licence. 7. Shri Kamal Inderraj Gurnani in his statements dated 13.10.2010 (Annexure-II), inter-alia, further stated that:- * Shri Anand Prakash Chaudhary (Managing Director of M/s. Dadi Impex Pvt. Ltd., Mumbai) told him that he had to export MOT (Muriate of Potash) packed in 50kgs. PP bags i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing transport business at Gandhidham, he met Shri Kamal Inderraj Gurnani during 2007 when Mr. Gurnani was working with M/s. Nakoda Forwarders. Since last two-three years Shri Kamal Inderraj Gurnani was attending customs clearance work in the name of their CHA firm at Kandla Port. * he did not pay salary to Shri Kamal Inderraj Gurnani. Shri Gurnani is not on roll of his CHA firm. Shri Gurnani was doing business of forwarding in the name of M/s. Glorex Enterprises and used to bring business to him and used to attend clearance work at Kandla. For that Shri Gurnani used to give him Rs. 500/- per container (irrespective of size of the containers) after keeping his charges, he did not pay Shri Gurnani any charges. He was not aware as to how much amount Shri Gurnani used to charge to the customers. * during March, 2010, Shri Kamal Inderraj Gurnani informed him over phone that an Export House namely M/s. Dadi Impex Pvt. Ltd. wanted to get export clearance of salt through his CHA firm. He informed that it would be voluminous work. He initially hesitated because due to some changes in staff etc. he was not able to cope up with all the works. But when Shri Kamal Inderraj Gurnani insisted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in customs clearances using the appellant s license for about 3 years and was regularly receiving the payments for having done so. The appellant had granted Shri Gurnani H card that Shri Gurnani was acting on behalf of the appellant as its H card holder. H Cards are sponsored by the CHA only for its employees and if Shri Gurnani was not an employee of the appellant, sponsoring his H card was in clear violation of CHALR 2004. The Gujarath High Court in the case of Rajendra Purohit reported in 2012 (278) ELT 54 (Guj.) essentially held as under. "The CHA failed to supervise the action of its employee, neither any contact was made with exporter nor was authorization obtained from it - CHA when engages the employee for conducting his business he acts through him and when alleged illegalities committed are in the course of employment and while discharging his function as CHA he cannot dissociate himself from those act when not having fulfilled is part of the obligation - Order of prohibition can not be said to be passed without any substantiating material." It clearly comes out from the statement of Shri Walia himself and which is also in harmony with the statement of Shri Gurnanai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority in this behalf." 11. The judgment in the case of Asiana Cargo Service (supra) cited by the appellant does not come to its rescue, inasmuch as, in that case the Hon ble High Court came to a finding that there was no finding that the trust operating between CHA and customs authorities was violated or irretrievably lost for future operation of licence and that proportionality doctrine escaped the analysis in the order revoking the license and further that the only proved infraction was issuance of G cards to non-employees. In the present case, the appellant allowed its license to be used and operated by Shri. Gurnani, for whom it sponsored H card even though it claimed he was not its employee ( and therefore, sponsoring of H card itself was illegal). The appellant allowed using of its CHA license by Mr. Gurnani not as a one-off but for about 3 years and during this long period did not even take basic precaution to ensure that the license was not misused and that the obligations cast upon the licensee under CHALR 2004 were being fulfilled. The result was that the license got misused for attempted export of MOP which was restricted for export. The CHA licensee is reposed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also left undisturbed by the Supreme Court. The present case is some what similar to one of Sri Kamakshi Agency, if not worse. Here, the CHA has brazenly defended his Regulation 8 employee who gave a fake name of his brother as an importer for undervaluing the imported car. Thus, the employee of the CHA was party to the Firm. The CHA has not disowned him and has, in fact, defended him in the reply filed by him before the appellant. That being so, he is clearly responsible vicariously. (emphasis added). 28. In our view, the Tribunal has committed a grave error in interfering with the decision of a domestic authority. In a departmental proceeding one has to see whether the principles of natural justice are followed and the findings are justified from material on record. Once both these aspects are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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