2016 (11) TMI 339 - AT - Customs

Tribunal orders forfeiture of security deposit instead of license revocation due to lack of evidence

Parekh Cargo Logistics Pvt. Ltd. Versus Commissioner of Customs Pune

The Tribunal set aside the revocation of the CHA license for M/s Parekh Cargo Logistics Pvt Ltd, finding insufficient evidence of active participation in ... Revocation of CHA licence - export of ‘muriate of potash’ without valid sanction - Held that: - reliance placed on the decision of this Tribunal in K S Sawant & Co [2013 (12) TMI 119 - CESTAT, MUMBAI] where it was held that 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 the Commissioner of Customs (General) to restore the CHA licence subject to the forfeiture of entire security amount tendered by the CHA. The ends of justice will be met by forfeiture of the security deposit - the revocation of licence of the appellant set aside - appeal partly allowed. Issues Involved:1. Revocation of customs house agent (CHA) license.2. Allegations of fraudulent export activities.3. Compliance with Customs House Licensing Regulations (CHALR) 2004.4. Procedural delays and adherence to prescribed timelines.5. Impact of previous adjudications and penalties.Issue-wise Detailed Analysis:1. Revocation of CHA License:The appeal was filed by M/s Parekh Cargo Logistics Pvt Ltd against the order of revocation of their CHA license dated 24th September 2015. The license was initially suspended on 14th October 2010 due to alleged involvement in fraudulent export activities. The revocation was based on the findings of an Inquiry Officer, which substantiated the charges against the appellant.2. Allegations of Fraudulent Export Activities:The appellant was accused of filing shipping bills for the export of 'muriate of potash' under the guise of 'sodium chloride' on behalf of M/s Balaji Enterprises. The Inquiry Officer’s report substantiated five charges, including failure to obtain prior authorization, failure to advise the exporter to comply with customs provisions, and failure to verify the correctness of information and client details. The Commissioner of Customs held that the CHA was actively involved in the fraudulent export, which had significant economic implications.3. Compliance with CHALR 2004:The Inquiry Officer found the appellant in violation of several regulations under CHALR 2004, specifically Regulation 13(a), 13(d), 13(e), 13(n), and 13(o). The Commissioner of Customs agreed with these findings, emphasizing the CHA’s critical role in customs operations and their failure to fulfill their responsibilities.4. Procedural Delays and Adherence to Prescribed Timelines:The appellant argued that there was an inordinate delay in finalizing the proceedings, contrary to the guidelines in circular no. 9/2010 of Central Board of Excise & Customs, which prescribes issuing orders within 15 days of the hearing and completing proceedings within nine months. The Commissioner justified the delay due to the complexity and seriousness of the fraud. However, the Tribunal noted that the delay was not adequately justified and emphasized the need for strict adherence to timelines to ensure fairness.5. Impact of Previous Adjudications and Penalties:The appellant highlighted that the penalty imposed on their Managing Director under Section 117 of the Customs Act, 1962, was set aside on appeal. The Commissioner noted that while the penalty was quashed on technical grounds, it did not absolve the CHA from action under CHALR 2004. The Tribunal observed that the penal proceedings did not sustain and there was no evidence of the appellant’s active participation in the fraudulent activities.Conclusion:The Tribunal referenced the decision in KS Sawant & Co, which emphasized that punishment should be commensurate with the gravity of the offense. The Tribunal found that the charges against the appellant were not substantiated by evidence of active participation in the fraud. The Tribunal concluded that revocation of the CHA license was an extreme measure and instead ordered the forfeiture of the security deposit as sufficient punishment. The revocation order was set aside, and the appeal was allowed to that extent.