TaxTMI 
TaxTMI 
2011 (3) TMI 816
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....ed signatory of the CHA submitted four shipping bills, (No. 2952 to 2955 dated 17-3-2004), on behalf of M/s. Globle Fashions (Exim) India, Goa at the ICD, Hyderabad for export of goods declared as "Ladies Nightwear" valued at Rs. 1,15,96,832/- (FOB). On the basis of these four shipping bills M/s. Globle Fashions claimed DEPB credit at 11% of the FOB value. On examination of the export consignment, the description and the value of the goods were found to have been misdeclared with a view to claim DEPB credit by fraudulent means. Sri C.N. Rajendra Kumar a partner of the respondent, in his statement under Section 108 of the Customs Act dated 27-3-2004, admitted to have given ten duly signed blank shipping bills to M/s. Trans-Asia Shipping, receiving Rs. 150/- as service charges for each such shipping bill; the exporters were not known to him; and, while witnessing examination of the export cargo on 27-3-2004, he was surprised to find that there was gross mis-declaration in the description of the goods. Subsequently Sri C.N. Rajendra Kumar, by fax dated 13-4-2004, retracted his earlier statement dated 27-3-2004 contending that he had given the statement in a state of confusion; he was ....
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....a Kumar had signed blank shipping bills without even knowing the exporter or his whereabouts, and the nature of the goods attempted to be exported; had this mis-declaration of description and value of the export goods not been directed by the Customs Department, the exporter would have claimed a huge amount as DEPB credit though he was ineligible thereto; and the reckless and irresponsible behaviour of Sri C.N. Rajendra Kumar, in the discharge of his functions as a CHA, was proved. A copy of the enquiry report was furnished to the respondent and, at his request, a personal hearing was afforded. During the personal hearing, Sri C.N. Rajendra Kumar again admitted to have signed the blank shipping bills in good faith; he was not aware that the consignments, covered under the shipping bills signed by him, were not garments; he came to know that the shipping bills signed by him were misused only when he was called by the DRI for verification; and, in view of his clean record for the last 18 years, a lenient view be taken. 5. In his order dated 12-12-2008, the Commissioner held that Sri C.N. Rajendra Kumar, partner and authorized signatory of the respondent, had signed blank ship....
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....ished; they had neither paid the penalty nor had they filed an appeal against the order of penalty owing to their penury; the CHA had an unblemished record; the export consignment was presented in sealed containers stuffed at the factory premises of the manufacturer under the supervision of central excise officers; even if the exporter had engaged any other CHA, for entering the impugned consignment for export, the CHA would have filed the shipping bills with the description and value following the details mentioned in the accompanying ARE-2s; that the exporter had used the signed bills which were found to have been sold for a consideration by the respondent made no difference to the subsequent events that unfolded; goods arriving at the customs station in sealed containers, were not usually subjected to examination before export; examination and detection of the infractions was on account of specific intelligence received by the investigating agency; the conclusion of the enquiry officer, as regards the respondent's contribution to the attempted fraud, did not appear to be correct; to that extent the impugned order was based on an incorrect report; the CHA had an unblemished recor....
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....53) E.L.T. 190; the Madras High Court in Sri Kamakshi Agency v. Commissioner of Customs, Madras - 2001 (129) E.L.T. 29 (Madras); and the Supreme Court in Kamakshi Agency v. Commissioners - 2002 (142) E.L.T. A87 (S.C.). 8. Sri C. Kodandaram, Learned Senior Counsel appearing on behalf of the respondent, would submit that no substantial question of law arises necessitating interference by this Court under Section 130 of the Customs Act; the CESTAT is an expert body; the corum consists of not only a judicial member but also a technical member both of whom are well versed in the relevant rules and regulations; the CESTAT had found that there was no fraudulent conduct on the part of the respondent in the transaction, and they had only been negligent; the CESTAT had also noted that, since the misdeclared goods were in sealed containers, the respondent could not have been aware that the goods had been mis-declared, even if he had not sold blank shipping bills but had, instead, filed shipping bills containing all particulars; shipping bills were prepared by the CHA on the basis of ARE II Form which contains the description and value of the goods sought to be exported; and, using of ....
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....ties. 10. The CESTAT has not differed with the findings of the Commissioner that the respondent had signed blank shipping bills for a consideration of Rs. 150/- per shipping bill, and such shipping bills were used in the attempted fraudulent export of rags and cheap clothes misdeclaring them as "ladies night wear", and their value as Rs. 1,15,96,832/-. The CESTAT also acknowledges that the respondent-CHA was imposed a penalty of Rs. 25,000/- under Section 114 of the Customs Act, which order has attained finality. The conclusion of the CESTAT, that no different consequences would have ensued even if the shipping bills had been filled up and signed by the respondent-CHA, is wholly irrelevant and is more in the nature of surmises and conjectures. We called for a proforma of the shipping bill for export of duty free goods. The said proforma requires the CHA to furnish details of the description of the goods, its quantity, its FOB value, the kind of packages, container numbers, net weight, gross weight etc. It also requires the CHA to give a declaration that the particulars given in the shipping bill are true and correct. It is evident, therefrom, that the CHA is required to ens....
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....llegations, cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied, while dealing with the question of quantum of punishment, would be: would any reasonable person have imposed such punishment in like circumstances? Obviously, a reasonable person is expected to take into consideration the measure, magnitude and degree of misconduct and all other relevant circumstances, and exclude irrelevant matters before imposing punishment [Mukul Kumar Choudhuri - (2009) 15 SCC 620]. The CHALR enables both suspension and revocation of the license of a CHA for violation of any of the conditions specified therein. If any such ground exists, two courses are open to the Commissioner. One is to suspend the license and the other is to revoke it. Suspension would mean that the license would be inoperative for a particular period. An order of revocation would mean that the license is totally inoperative in future, it loses its currency irretrievably. Suspension/revocation, as the case may be, has to be directed looking to the gravity of the situation in the background of the facts. For minor infraction, or infractions which are not ....
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....ibunal, it is beyond doubt that the Applicant committed gross violation of the Regulation while acting as Customs House Agent. In fact, the Applicant has admitted the malpractices found out by the Directorate of Revenue Intelligence which resulted in an evasion of duty to the tune of Rs. 80 lakhs. The only stand of the Applicant was that because of the wrong committed by his Power of Attorney, Shri Sukumaran, the various lapses discovered by the Directorate Revenue Intelligence had taken place. He only contended that by way of caution, he had taken a deposit of Rs. 75,000/- from the Power of Attorney to safeguard himself from any misuse. It only disclose that the Applicant instead of discharging his functions as a Customs House Agent in accordance with the Regulations, in fragrant violation of those Regulations went to the extent of encashing the facilities made available to him as a CHA by selling it for a price which action of the Applicant can never be condoned. The very purpose of granting a licence to a person to act as Custom House Agent is for transacting any business relating to the entry or departure of conveyance or the import or export of goods at any customs station. Fo....
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....ed against the Applicant are concerned, it has been found established that the Proprietor of the Applicant Thiru Natarajan had signed on certain blank documents such as Bs/F and S/Bs without knowing the importers/exporters and the nature of goods imported/exported in spite of being in the clearing line over thirty years. It is also admitted that Sri D. Sukumaran, Manager-cum-Power of Attorney of the Custom House Agent concerned, had actively involved in the fraudulent act in connivance with the importers and others and that as per the Power of Attorney Bond executed by Sri K. Natarajan all acts, deeds and things done by Sri D. Sukumaran were to be construed as if they were done by himself. Therefore virtually all the fraudulent activities carried out by the Power of Attorney of Thiru Natarajan were to be treated as having been carried out by Thiru K. Natarajan himself. Even assuming that the role played by Thiru D. Sukumaran is to be construe as that of an employee of the Applicant, the same would not in any way alter the situation since that had resulted in a serious loss to the respondent. The fact remains that the respondent sustained a loss of duty by the reckless and irrespons....
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....; U.P. SRTC v. Suresh Chand Sharma - (2010) 6 SCC 555; J.A. Naiksatam v. Prothonotary & Senior Master, High Court of Bombay - (2004) 8 SCC 653; Union of India v. Gyan Chand Chattar (2009) 12 SCC 78; NEKRTC v. H. Amaresh - (2006) 6 SCC 187; U.P. SRTC v. Vinod Kumar - (2008) 1 SCC 115]. 16. While great emphasis is placed by Sri C. Kodandaram, Learned Senior Counsel appearing on behalf of the respondent, on the previous unblemished record of the CHA, it must be borne in mind that a single act of corruption is sufficient to award the maximum penalty which, under the CHALR, is of revocation of the license. (State of Punjab v. Ex-Constable Ram Singh - (1992) 4 SCC 54. That the respondent has been found guilty under Section 114 of the Customs Act, which proceedings have attained finality, is also a factor which must be borne in mind. While Tribunals constituted under the Customs Act, and this Court exercising jurisdiction under Section 130 of the Customs Act, are required to ensure that the punishment imposed is commensurate to the proved acts of misconduct, the present case which not only involves negligence on the part of the CHA in issuing blank shipping bills, but also an act ....