2014 (12) TMI 938 - AT - Customs

Tribunal overturns CHA license revocation order, stresses consistent penalties & fair treatment

SUN CLEARING & FORWARDING SERVICES P. LTD. Versus CC. (GENERAL), MUMBAI

The Tribunal set aside the order revoking the CHA license, allowing the appeal with consequential relief. The judgment emphasizes consistent penalties and ... Rectification of mistake - Revocation of CHA license - Fraudulent export under Buy Back System were affected - Availment of excess ineligible Drawback - Held that:- appellant has not disputed that the clearance of the impugned goods has been conducted by Shri Sumit V. Ghatkamble. It is also an admitted fact that Shri Sumit V. Ghatkamble was not having a customs pass. When a person is not having a customs pass and is a trainee employee as contended by the appellant, in that situation, the clearance were conducted by Shri Sumit V. Ghatkamble was within the knowledge of the appellant. These facts are also admitted by Shri Sumit V. Ghatkamble. It is also an admitted fact that the work has been brought by one Shri Mahesh Pande to Shri Sumit V. Ghatkamble to whom the appellant has allowed to use their CHA licence for some consideration. Therefore, the observation made by the adjudicating authority in the impugned order that “I find that no such permission has been obtained and that Shri Sumit V. Ghatkamble was not holding customs pass in the name of charged CHA while undertaking customs clearance of the subject export goods under the ten shipping bills of M/s. Leevon Overseas. Therefore, the charge under Article 12 has been proved against the appellant is beyond doubt” is not correct. The appellant has authorization from the exporter for undertaking the transactions. He has also obtained all the documents required for filing of the shipping bills and other export documents. The check-list has been prepared by the appellant’s own employee and preliminary verification of the existence of the exporter has also been undertaken, it does not mean that the CHA licence has been sub-let. The examination of the goods is a function to be undertaken by the Customs Officer. Merely because thee CHA or its employee was absent during the examination, it does not mean that the CHA licence has been sub-let. Following the precedent decision we set aside the impugned order revoking the CHA licence No. 11/499 - Decided in favour of appellant. Issues:Fraudulent exports under Buy Back System, Excess ineligible Drawback availed, Syndicate of operators involved, Lack of valid Custom House Agent (CHA) license, Revocation of CHA license, Inconsistency in decisions, Violation of CHALR, 2004, Transfer of CHA license, Precedent cases comparison.Analysis:The case involves fraudulent exports under the Buy Back System where a syndicate of operators engaged in large-scale fraudulent exports of ready-made garments by overvaluing goods and availing excess ineligible Drawback. The operators did not have valid Custom House Agent (CHA) licenses and engaged in unauthorized clearances. The appellant was found involved in clearing the impugned consignment, leading to an investigation resulting in the revocation of their CHA license under CHALR, 2004 for various violations.The appellant argued against the penalty imposed on the grounds of inconsistency in decisions, citing cases where similar charges led to different outcomes. They contended that the punishment was harsh and not based on true facts, seeking relief based on precedents where revocation of CHA licenses was withdrawn due to policy inconsistencies.The Tribunal considered the submissions and found that the appellant's involvement in unauthorized clearances was established, as they allowed an individual without a customs pass to conduct clearances using their CHA license for consideration. However, comparing the case to precedent cases where similar charges did not lead to revocation, the Tribunal concluded that the appellant's actions did not amount to sub-letting the CHA license. Relying on the precedent decision, the Tribunal set aside the order revoking the CHA license, allowing the appeal with consequential relief.In summary, the judgment addresses issues of fraudulent exports, CHA license violations, policy inconsistencies, and the transfer of CHA licenses. It emphasizes the need for consistent application of penalties and considerations of precedents in revoking CHA licenses. The Tribunal's decision to set aside the revocation order highlights the importance of fair and equitable treatment in similar cases.