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TMI Blog2016 (11) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... al) Shri J.S. Sanghvi, Consultant for the appellant Shri Chatru Singh, Asstt. Commissioner (AR) for the respondent ORDER This appeal has been filed by M/s Parekh Cargo Logistics Pvt Ltd, holder of licence no. PN/R/20 issued under regulation 9(1) of the erstwhile Customs House Licencing Regulations, 2004 by Commissioner of Customs, Pune, seeking the quashing of order of revocation of licence dated 24th September 2015. Appeal has been filed under section129A of Customs Act, 1962 read with the said Regulations. 2. The licence, extended for use at Ahmedabad, was utilised to file shipping bills dated 7th September 2010 on behalf of M/s Balaji Enterprises for export of muriate of potash under the guise of sodium chloride. During investigations, the shipment of two other consignments in August 2010 also came to light. The shipper had been effecting shipments between May and July 2010 and had been referred to the appellant by M/s SJ International, an agent whose licence had been suspended by Commissioner of Customs, Nagpur in June 2010. Licence of appellant was suspended on 14th October 2010. The appellant was also proceeded against vide notice dated 1st June 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Commissioner issued the impugned order holding that: 39. In view of aforesaid discussion and also on the basis of findings of the Inquiry Officer, I have to hold that the CHA got actively involved in the fraudulent export of MOP under the guise of Sodium Chloride. It is a fact that the CHA is an important link between the exporter and the Customs and without the active involvement of the CHA the subject export fraud could not have taken place. As such, I have to hold that the export of MOP under the guise of Sodium Chloride has wider implications on the economy and the CHA could not live up to the responsibilities/obligations cast upon him under the CHALR 2004. I therefore agree with the Inquiry Officer s report that the CHA has failed to fulfil the obligations of Regulation No.13(a), 13(d), 13(e), 13(n) and 13(o) of the CHALR 2004. 40. As regards the contention of the CHA that the department has not followed the procedures prescribed for suspension of their licence, it is on record that the final decision in this matter had to be taken on the basis of outcome of the Inquiry and adjudication proceedings at Ahmedabad Customs. It is also on record t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also taken a plea for restoration of their licence on the ground that suspension of licence may deprive their staff of their livelihood. Considering the grievous nature of the offence which has large ramifications, I have to hold that the CHA has compromised with the economy and security of the nation by way of indulging in the mis-declared export so the above plea of the CHA cannot be accepted. 43. The intrinsic faith that the department keeps in the institution of CHA has been mis-utilised for monitory gains in this case and as such I am inclined to hold that the operation of the CHA licence be revoked. 5. Learned Consultant relied upon the decision of the Tribunal in KS Sawant Co v. Commissioner of Customs (General), Mumbai [2012 (284) ELT 363 (Tri-Mumbai)]. Learned Authorised Representative, per contra, relied upon the decision of the Tribunal in Nikhil Shipping Agency v. Commissioner of Customs (General), Mumbai [2012 (283) ELT 513 (Tri-Mumbai)], which was finalized by reference to Third Member, holding that absolute and final revocation of licence is a consequence of establishing that charges leveled against a customs house agent are correct and that delay is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13(b), there is some merit in the argument. Both Shri Sunil Chitnis and Shri Ashish Patekar, authorised signatory of the appellant CHA, has admitted that it was Shri Sunil Chitnis, who undertook the clearance work on behalf of the CHA. Mere signing of the documents does not prove that the clearances were undertaken by the appellant CHA and, therefore, there is some merit in the argument that Regulation 13(b) has been violated by employing Shri Sunil Chitnis for doing the clearance work of M/s. Advanced Micronics Devices Ltd. The question now is whether revocation of licence is warranted for such a violation. Further, holding that the punishment should be commensurate with the gravity of the offense, the Tribunal restricted the penalty of forfeiture of security deposit to suffice for the failures. 8. We note that both the cited decisions have delved into the merits of the respective submissions to render a finding. Though, in re Nikhil Shipping Agency, the Tribunal did examine the effect of alleged delays in finalizing the revocation proceedings and observed that such delays would not mitigate the gravity of the offence which was deserving of the penalty imposed, we note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable one. That the exporter was not a new entrant into the field is admitted in the record of proceedings. The scam of exporting muriate of potash had apparently been going on for some time and it is hardly within the competence of an agent to unearth it or carry on a crusade against it; more so, when seasoned officers of customs were unable to do so. We see from the records that only three consignments were handled by the appellant and, that too, only in relation to filing of documents of factory sealed containers. No evidence is forthcoming to establish that the appellant, in its capacity as an agent, was privy to the contents of the container. 11. We are, therefore, inclined to follow the ratio of the decision of this Tribunal in re K S Sawant Co that: 5.1 In our view, the punishment should be commensurate with the gravity of the offence. Revocation is an extreme step and a harsh punishment, which is not warranted for violation of Regulation 13(b). Accordingly, we are of the view that forfeiture of security tendered by the appellant CHA is sufficient punishment and revocation is not warranted. Accordingly, we set aside the order of the revocation and direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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