TaxTMI 
TaxTMI 
TaxTMI 
2012 (12) TMI 271
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....maceutical Ltd., (SPL in short) for third party exports against SPL's DEEC licences. The said goods instead of gong to Nhava Sheva Port for export were diverted to local market. At the same time, they had purchased 'soap stone powder' and substituted the same in the place of pharmaceutical goods by mis-declaring the description under the cover of 14 DEEC shipping bills declaring the FOB value of Rs. 1,52,60,075/- as against actual (total) market value of soap stone powder of Rs. 14,459/-. 2.2 Similarly, in another case of mis-declared export goods covered by 66 shipping bills under claim for DEPB and fraudulent acquisition of 47 DEPB licences having total duty credit of Rs. 1,32,31,753/- and the subsequent sale in the local market to various buyers/importers by SSEPL, the CHA involved was the appellant, M/s. Santon Shipping Services. 2.3 Statement of Shri V.P. Nair, CHA representative of Santon Shipping Services was recorded under Section 108 of the Customs Act on 19-6-2007 where he admitted that the export goods involved in this transaction were brought in by a person named Pandit and he did not know the person. The documents relating to the exports were given to him b....
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....he understanding, Shri Nair was required to look after all clearances related work while he was required to get the signature of authorised person in the documents against payment of a sum and, accordingly he had obtained customs pass in the name of Shri V.P. Nair declaring him as an employee since 2004. He has not paid any salary to Nair and Shri Nair had exclusively and independently was handling all the work related to the exports on behalf of SSEPL. He further admitted that he had received a total amount of Rs. 10,200/- from Shri Krishna Kumar towards 38 Shipping Bills filed using his identity and name. 2.5 Statement of Shri Krishna Kumar of Airose Shipping Pvt. Ltd. was recorded on 23-5-2008 wherein he inter alia admitted that he had undertaken export clearance work of SSEPL through Shri V.P. Nair of Santon Shipping Services and he had collected the export documents from one Shri Rajasekhar Pillai of SSEPL's office and thereafter, the documents were handed over to Shri V.P. Nair for further processing and export. He had no idea as to from where these export goods originated. The vehicles used for transportation were all local vehicles. 2.6 An inquiry was initiated ....
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....its that Shri V.P. Nair was an employee of the CHA firm and when the employees of CHA use the licence for clearance of goods, it cannot be said that the licence was sold/sub-let by CHA in violation of Regulation 12 of the CHALR, 2004. 3.1 As regards the allegation of non-obtaining the authorization from the exporter, the ld. Advocate submits that though they had not obtained authorization, the documents have been in the name of the exporter and from these documents it is evident that the impugned exports had taken place in the name of the exporter. He further submits that the impugned goods were received for export under ARE-1 procedure, which indicates that the goods have been exported by a manufacturer exporter and, therefore, there is no reason for him to suspect that the goods should be other than what has been declared. 3.2 With respect to the 3rd charge that though Shri V.P. Nair was not an employee, the CHA obtained a Customs pass in his name, the ld. Advocate submits that Shri Nair was an employee since 2004 and from the attendance register it can be seen that Shri Nair has marked his attendance and from the salary register, Shri Nair is shown as an employee and....
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....derabad-II v. H.B. Cargo Services reported in 2011 (268) E.L.T. 448 (A.P.) and the decision of the Hon'ble High Court of Delhi in the case of Jasjeet Singh Marwaha v. UOI reported in 2009 (239) E.L.T. 407 (Del.) in support of his contention. 5. We have carefully considered the rival submission. 6. The first question to be decided is whether Shri V.P. Nair is an employee of the CHA or not. As per the statement of Shri Bose J. Fernando, the partner of the CHA firm recorded under 108 of the Customs Act, it is seen that the clearance work was brought to him by Shri Nair for undertaking the export work of SSEPL and when Shri Nair approached with the said proposal, he had reached an understanding with him for allowing usage of his licence for fixed charges and that the consideration was irrespective of nature and value of the consignment. Shri V.P. Nair, though had been shown to have been an employee of Santon Shipping Services since 2004, he had not paid any salary to Shri Nair and Shri Nair was exclusively and independently handling all the work relating to the said exporter only and he was not attending to the work of any other exporter/importer. From the above, it is clea....
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....ass in Shri Nair's name by declaring him as an employee. Therefore, he has clearly contravened the provisions of Regulation 13(b) of CHALR, 2004. 6.1 As regards the reliance placed by the Advocate for the appellant in the case of Sainath Clearing Agency, in that case it was held that the CHA cannot be held liable for anything done or omitted by the employee beyond the purview of CHA's obligations under CHALR, 2004 and they cannot be made vicariously liable on the basis of principal agent relationship by application of Section 147 of the Customs Act, 1962. In the instant case, the facts are completely different and distinguishable. Firstly, Shri Nair was not an employee and he was mis-declared as an employee and the CHA reached an understanding in undertaking export clearance work for a consideration by allowing Shri Nair to use the CHA licence. Therefore, the ratio of the said judgment has no application whatsoever in the facts of the present case. 6.2 As regards the case law in respect of S.S. Clearing and Forwarding Agencies Pvt. Ltd., in that case the issue related to whether the CHA could be held responsible for getting for authorization on behalf of his client and ....