9911796707
TMI Blog2016 (12) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... evocation of licence is not sustainable - appeal allowed - decided in favor of appellant. - Appeal No. C/87319/13 - Order No.A/93861/16/CB - Dated:- 15-11-2016 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri N.D. George, Advocate for Appellant Shri Kamal Puggal, Asstt. Commr. (A.R) for respondent Per : Ramesh Nair This appeal is arising out of the Order-in-Original No. 59/CAO/CC/(G)/PKA/2013-14 dated 16.04.2014, passed by the Commissioner of Customs (General), New Customs House, Mumbai, whereby the Ld. Commissioner ordered for revocation of CHA licence of the Appellant and also ordered forfeiture of entire amount of security deposit. As per the findings of the Commissioner the reasoning given for the revocation of Cha Licence is that the Appellant has sublet the licence against consideration to various companies such as M/s. Vaishnovi Clearing and Forwarding Agency, M/s. Shree Swami Samarth Logistics Shree Vighnahar International. For this reason the enq1uiry proceedings were conducted against the CHA and issued a chargesheet of probable violation of Regulation 12, 13(a), 13(d). 13(e). 13(n), 13(o), 19(8) of CHALR, 2004. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Kumar Sharma Vs. Commissioner of Customs, New Delhi 2000 (122) E.L.T.518 (Tribunal) (ii) K.S. Sawant Co. Vs. Commissioner of Customs (General), Mumbai 2012 (284) E.L.T. 363(Tri.-Mumbai) (iii) Crown Shipping Agency Vs. Commissioner of Customs, Mumbai 2004 (178) E.L.T. 885 (Tri.-Mumbai) 3. On the other hand, Shri Kamal Puggal Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides. We find that the Ld. Commissioner revoked the CHA licence of the appellant mainly on the charges that they have sublet the licence and consequently violated the various Regulations of CHALR, 2004. As regard the charges of subletting the licence the entire Customs clearance work was done by the employee of the appellant in the banner of the appellant M/s. S.A. Dalal Co. The appellant have outsourced the work of various other persons such as M/s. Vaishnovi Clearing and Forwarding Agency, M/s. Shree Swami Samarth Logistics Shree Vighnahar International, for which monetary consideration was received by the appellant. Despite this undisputed fact this fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri V.N. Choudhry had signed the Annexure 2 to the Bill of Entry. Further, it has been submitted that Shri V.N. Choudhry was holding G Card from the Customs under which he could operate in the Customs area and if he had signed the Annexure 2 to Bill of Entry that signature was legally made and in no way indicated that Shri V.N. Choudhry was working for any other person other than M/s. K.K. Sharma. Having considered the above facts, we hold that no case for subletting the Customs House Agent clearance work to M/s. Track has been proved by the Customs Authorities. In the circumstances the revocation of licence and forfeiture of security is not sustainable in law in the present case. In the circumstances, the impugned order is set aside and the appeal is allowed . (ii) In the case of K.S. Sawant Co. (supra) held that- 5.1 From the records, it is clear that the business in respect of the client M/s. Advanced Micronics Devices Ltd., was brought in by Shri Sunil Chitnis, who claims himself to be a sub-agent of the appellant CHA. The statements of Shri Badrinath and Shri Sunil Chitnis amply proves this fact. The question is, merely because the appellant procured the busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 the Commissioner of Customs (General) to restore the CHA licence subject to the forfeiture of entire security amount tendered by the CHA. (iii) In the case of Crown Shipping Agency (supra) held that- The enquiry officer has found the charges in an Article 1 herein above and the other four charges were found and held to be not proved, after detailed enquiry. 3. (a) If the article of charges and grounds as are not proved, are considered, it is established that the CHA has complied with the onerous responsibility of effective supervision on his employees, all the documents have been prepared and presented with due care and in accordance with the Act and the Procedures. There was nothing extraordinary which was to have been brought to the notice of the Assistant Commissioner. This also indicates that Proper authorization was obtained fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orders passed by earlier Collectors on this same subject were not considered by the ld. Commissioner or have been not differentiated. Orders passed contrary to the settled position, upheld by Tribunal vide order in case of P.P. Dutta [2001 (136) E.L.T. 1042 (T)] and Krishan Kumar Sharma [2000 (122) E.L.T. 581] would exhibit judicial indiscipline and not a judicious order. Such orders cannot be upheld to arrive at conclusion that the CHA herein had sold and transferred the licence. When otherwise the CHA for the same clients is found to have not conducted any violation. 4. When no violation of sale or Transfer is being found the order cancellation arrived at after following the finding of Enquiry Officer are to be set aside and the licence restored. Appeal allowed. Ordered Accordingly . From the above judgments it can be seen that in the identical mouds operandi of the present case, it was held that this sort of arrangement is not subletting of licence. As regard the Commissioner s finding with regard to violation of other regulations, we find that, the genesis of entire case is the charge of subletting of the licence. We hold that in the present case there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
