2015 (2) TMI 551 - AT - Customs

Appellant's CHA license revocation overturned, dissenting opinion sparks referral to President for further review.

The Tribunal found that the appellant did not violate Regulations 12, 13(a), 13(d), and 19(8) of CHALR, 2004, and set aside the order revoking the CHA ... Revocation of CHA License - Clearance of Mis-declared of goods - Charge under Regulations 13(a), 13(d) and 19(8) of the CHALR, 2004 - Difference of opinion - matter may be referred to the President to nominate a 3rd Member to resolve the following issues:- 1. Whether in the facts and circumstances of the case the charges leveled against the appellant under Regulations 13(a), 13(d) and 19(8) of the CHALR, 2004 are stands proved or not. 2. If the charges are proved, in that case, the punishment suffered by the appellant is sufficient in the facts and circumstances of the case. Issues Involved:1. Whether the appellant violated Regulation 12 of CHALR, 2004.2. Whether the appellant violated Regulation 13(a) of CHALR, 2004.3. Whether the appellant violated Regulation 13(d) of CHALR, 2004.4. Whether the appellant violated Regulation 19(8) of CHALR, 2004.5. Whether the punishment of revoking the CHA license is justified.Issue-wise Detailed Analysis:1. Violation of Regulation 12 of CHALR, 2004:The appellant was accused of sub-letting their CHA license to Shri Dhirubhai Shah for Rs. 5,000 per month. The appellant contended that Shri Dhirubhai Shah was an employee, receiving a salary of Rs. 5,000 per month, supported by salary certificates, Books of Accounts, and Income Tax Returns. The learned Commissioner relied on statements recorded under Section 108 of the Customs Act, which were retracted within 24 hours. The Tribunal found the appellant's evidence credible and held that the charge under Regulation 12 was not proved.2. Violation of Regulation 13(a) of CHALR, 2004:The appellant was charged with not having proper authorization for clearance of goods. The appellant argued that the relevant documents were seized by the DRI and not returned, making it impossible to produce the authorization letters. The Tribunal found that the Revenue failed to produce the seized documents, thus the charge under Regulation 13(a) was not proved. However, the dissenting opinion by the Technical Member noted that the appellant did not provide details about the seizure and failed to produce duplicate authorization letters for an extended period. The Technical Member held that the charge under Regulation 13(a) was proved.3. Violation of Regulation 13(d) of CHALR, 2004:This charge was consequential to the charge under Regulation 13(a). Since the Tribunal found the charge under Regulation 13(a) not proved, it also held that the charge under Regulation 13(d) was not proved. The dissenting opinion, however, held that since the charge under Regulation 13(a) was proved, the charge under Regulation 13(d) also stood proved.4. Violation of Regulation 19(8) of CHALR, 2004:The appellant was charged with failing to supervise their employee, Shri Dhirubhai Shah. The Tribunal found that the appellant had control over Shri Dhirubhai Shah, as evidenced by salary records and Income Tax returns. Additionally, the Tribunal noted that the appellant was not made a party in the Customs proceedings and that the penalty on Shri Dhirubhai Shah was stayed. Therefore, the charge under Regulation 19(8) was not proved. The dissenting opinion argued that the appellant failed to supervise effectively and that the charge under Regulation 19(8) was proved.5. Justification of Punishment:Given that all charges against the appellant were not proved, the Tribunal set aside the order revoking the CHA license. The dissenting opinion, however, held that since three charges were proved, the revocation of the CHA license and forfeiture of the security amount were justified.Difference of Opinion:Due to the differing opinions between the Judicial and Technical Members, the matter was referred to the President to nominate a third member to resolve the following issues:1. Whether the charges under Regulations 13(a), 13(d), and 19(8) of CHALR, 2004, are proved.2. If the charges are proved, whether the punishment suffered by the appellant is sufficient.