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TMI Blog2019 (4) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... CHALR/CBLR - the renewal has been made by the department following the prescribed procedure as the charges against the appellants were not proved till then. Having now inquiry report before the ld. Commissioner and subsequent disagreement thereof is on record and, therefore, the Commissioner cannot be faulted with a revocation of licence granted to the appellant for their involvement in the clearance of import consignment viz. drawing and design by their client M/s Tata Steel Ltd. - the impugned order passed by the Commissioner is sustainable under the provisions of CHALR/CBLR - Appeal dismissed - decided against appellant. - Appeal No. C/77138/2018-DB - Final Order No. 75045/2019 - Dated:- 17-1-2019 - Mr. P.K. Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri S. Chakraborty, Sr., Shri Abhijit Biswas, And Shri Arnab Chakraborty, Advocate Shri S. Guha, AC (AR) for the respondent ORDER Per Bijay Kumar : Being aggrieved by the impugned order passed by the Commissioner of Customs (Airport Administration), Custom House, Kolkata, the appellant has filed the present appeal. 2. The facts of the case are that the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was a subsidiary to M/s Tata Steel Ltd. and that he was holding power of attorney to represent M/s Tata Steel on import and export related issues and therefore he was authorised to represent both the appellant and, the importer, M/s Tata Steel Ltd. He further deposed that the appellant were engaged in providing logistic support for import/export as a CHA in port operations, warehouse support and as a freight forwarders. The appellant was providing service of CHA only to the Tata Group of Companies. During the examination of the document, it was found that Shri Arun Kumar Srivastava has submitted letter dated 7.8.2009 to the Assistant Commissioner of Customs, Air Cargo Complex, Kolkata Airport in connection with assessment and clearance of the designs and drawings imported under Bill of Entry No. 512419 dated 21.7.2008 against the Purchase Order No. 3000035520 dated 12.7.2010 . As per the said letter, the first part of shipment equivalent to 10% of the total value (Euro 800,000) of the said purchase order for supply of general arrangement of drawing and single line diagram was cleared through DHL couriers valued at Euro 240,000 and second part shipment imported under Bill of Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by it should not have been forfeited on the purported ground that the appellant has failed to discharge its duty, esponsibility/obligation under Regulation 13(d), (e), (j) and (n) of the Regulation as the main show cause notice issued to M/s Tata Steel and the appellant has not yet been adjudicated by the Commissioner. The appellant has replied to the show cause notice to the Inquiry Officer vide letter dated 13.12.2010 and also appeared for the hearing on July 26/27, 2012 along with written submission which was taken on record by the Inquiry Officer. However, no report was finalised by the said Inquiry Officer. Approximately after two and a half years on October, 27, 2016, a new Inquiry Officer was appointed, who desired the copy of the reply and submissions, which was once again made available to him. In between Inquiry Officers were changed twice by issue of corrigendums. The last enquiry officer submitted his report dated 19.5.2017. On 19.5.2017 wherein he has recommended to drop the charge levelled against the appellant on the ground of limitation as well as merits of the case. On limitation, it was held in the report that current proceeding under the CHALR, 2004 is time ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not correct and he has referred with him on its agreement was not submitted to the appellant. 7. Against this background, the ld. Sr. Advocate, further submits that there is error on the part of the Commissioner to defer with the enquiry report submitted by the enquiry officer under the provisions of CBLR, 2013/CHALR, 2004. The time period find under the two regulations are as under : CHALR, 2004 CBLR, 2013 Purpose Specified Time Period 22(1) 20(1) Issuance of Show Cause Notice to the CHA/CB by the Commissioner Within 90 days from the date of receipt of an offence report 22(5) 20(5) Preparation of Report of Inquiry by the Deputy/Assistant Commissioner Within 90 days from the date of issuance of the Show Cause Notice 22(7) 20(7) Passing of order by the Commissioner Within 90 days from the date of submission of Inquiry Report Total Duration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral), Mumbai Vs. Unison Clearing Pvt. Ltd. 2018-TIOL-1826-HC-MUM-CUS wherein it has been held as under: 15. In view of the aforesaid discussion, the time limit contained in Regulation 20 cannot be construed to be mandatory and is held to be directory. As it is already observed above that though the time line framed in the Regulation need to be rigidly applied, fairness would demand that when such time limit is crossed, the period subsequently consumed for completing the inquiry should be justified by giving reasons and the causes on account of which the time limit was not adhered to. This would ensure that the inquiry proceedings which are initiated are completed expeditiously, are not prolonged and some checks and balances must be ensured. One step by which the unnecessary delays can be curbed is recording of reasons for the delay or non-adherence to this time limit by the Officer conducting the inquiry and making him accountable for not adhering to the time schedule. These reasons can then be tested to derive a conclusion whether the deviation from the time line prescribed in the Regulation, is reasonable . This is the only way by which the provisions contained in Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chinta. The appellant s witness in his statement had stated that he had collected the invoice and check list from this Chinta on 2nd January, 2006 along with a covering letter. Thus, not knowing the exporter, but having signed and filed the Shipping Bill on the basis of the documents received from M/s. Max Shipping was the real charge and held to be proved. 17. It is in these circumstances that we are of the opinion that sending the matter back to either the Commissioner or the Tribunal would serve no purpose. We accept the stand of the appellant that at best he could be held to be guilty of this charge and for the same the penalty that he has suffered of loss of licence as a Customs House Agent from 28th March, 2013, till today should be sufficient. Further, the forfeiture of security deposit in addition to the above can also be ordered. Ordered accordingly. 11. Ld. AR supported the impugned order passed by the Commissioner also submitted that in this case even though the show cause notice issued by DRI, Kolkata is yet to be adjudicated but in view of categorical admission by the officers of the appellant about the replacement of invoices issued from the exporter to the M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inquiry report given by the Inquiry Officer appointed by him to conduct inquiry regarding the charges against the appellant for noncompliance of CHALR, 2004/CBLR, 2013. The Inquiry Officer has held that the charges against the appellants are not proved both on the count of limitations as well as on merits of the case and accordingly the Respondent revoked the licence of the appellant along with forfeiture of security deposit. 14. The issue involved also in this case is regarding involvement of appellant as a CHA in clearance of the various consignments of drawing and design imported by M/s Tata Steel Ltd. The case of import of drawing and design was investigated by DRI, KZU and a Show Cause Notice have been issued to M/s Tata Steel, importer and also to the appellant as their clearing agent in deliberately suppressing the value of the said drawing and design imported by splitting the same in hard copy and soft copy in order to defraud the legitimate revenue to the Customs department. In this case the drawing and design was very much essential for the setting up/running and maintenance of the various plants of M/s Tata Steel Company at Jamshedpur and Orissa. It has been accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of CBLR, 2004/CBLR, 2013. We find that Commissioner has in his order at para 8.2 has given is disagreement note against the inquiry reports submitted before him which is as per Regulation and held in the case of Delta Logistics (supra). We are also in agreement with the Commissioner finding recorded regarding the non-adherence of the time limit prescribed under provisions of CHALR/CBLR as mentioned above has been held to be directory in the case of Unison Clearing Pvt. Ltd. (supra) which has been relied upon by the ld. Sr. Advocate also. In the order, it is held that the time limit contained in Regulation 20 cannot be considered as mandatory but directory only. The same has already been reproduced in para 10 of this order. 15. In this case, we find that due to administration exigency there had been change in the Inquiry Officer by the ld. Commissioner. In fact this case four Inquiry Officer were appointed on the various occasions and the Show Cause Notice were accordingly amended by issuance of corrigendum. We do not find that the non-adherence of the time limit prescribed under Rule 22/20 of CHALR/CBLR be fatal in this case. Accordingly, we hold that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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