TaxTMI 
TaxTMI 
2012 (12) TMI 354
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....ation to Regulation 13(d) of CHALR, 2004. The enquiry officer filed the report holding that the charges has been established against the appellant and thereafter proceedings were undertaken before the Commissioner of Customs (Gen), Mumbai. On the basis of charge made out in the enquiry report, the ld. Commissioner agreed with the enquiry report and convinced that the appellant has violated the provisions of Regulation 13(a) of the CHALR, 2004. Therefore the CHA licence No. 11/984 was revoked and the entire amount of security deposit had been forfeited. Against the said order, the appellants are in appeal before this Tribunal. 3. Shri Anil Balani, ld. Advocate for the appellant contested the impugned order of revocation of CHA licence on the following grounds that :- (a) enquiry in the impugned proceedings was not conducted in accordance with law. (b) the charges are on the basis of oral evidence. No other evidence has been considered as appellant has not admitted the charges. (c) The conclusion of the enquiry report is wrong. Punishment is harsh and show-cause notice has been issued on 30-6-2006 where....
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....missioner of Customs who is responsible for happening in the customs area and discipline to be maintained there and in this case admittedly there is violation of regulations; therefore impugned order is to be upheld as held by this Tribunal and the Hon'ble High Court of Bombay in CC v. Worldwide Cargo Movers - 2010 (253) E.L.T. 190 and OTA Kandla P. Ltd v. UOI - 2011 (269) E.L.T. 457 (Guj.). 5. Heard both sides. 6. After hearing both sides in detail, we find that for revocation of CHA licence, Regulation 22 of the CHALR, 2004 lay the procedure for suspending or revocation of licence under Regulation 20. Regulation 22(3) and (4) is reproduced hereunder for consideration :- "(3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings and he may also put any question to any person tendering evidence for or against the Custom House Agent, for the purpose of ascertaining the correct position. (4) The Custom House Agent shall be entitled to cross-e....
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.... in law and the punishment already suffered by the appellant is sufficient. Accordingly, we allow the appeal and set aside the impugned order with consequential relief. (Pronounced in Court on......) Sd/- (Ashok Jindal) Member (Judicial) 8. [Per : P.R. Chandrasekharan, Member (T)]. - I have carefully gone through the order recorded by my learned brother Member (Judicial). However, I am unable to subscribe to the views expressed by him on the matter. 9. Learned Member (Judicial) allowed the appeal and set aside the impugned order on the ground that no proper opportunity was given to the appellant to put forth their defence before the Enquiry Officer and the Enquiry Officer has not conducted the enquiry as per Regulation 22(3) and (4) of the CHALR, 2004. Since enquiry has not been conducted in the proper manner and the punishment of revoking the CHA licence is harsh, the impugned order has been set aside. 10. From the records of the case, it is seen that during the personal hearing held on 24-1-2008 by the Enquiry Officer the CHA did not reiterate/insist for cross-examination of the officers listed as witnesses. Further, the CHA did not attend the....
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.... appeared to be a fictitious entity. The transaction in the instant case is one of exports involving claim for duty drawback to the extent of Rs. 12,03,024/-. Therefore, the CHA should have obtained a proper authorisation from the exporter to act on his behalf, which has not been done in the instant case. Merely on the recommendation of Shri S.K. Maheshwari, who is the proprietor of M/s. Hindustan Shipping, the CHA could not have or should not have undertaken the export work and, therefore, the charge that the CHA did not have proper authorisation to undertake the transaction before the Customs is proved and violation of Regulation 13(a) of CHALR, 2004 is clearly established. 10.3 The second charge is that the CHA did not advise his client properly with respect to the transaction and did not bring to the notice of the Customs when discrepancies were noticed. In the instant case, when the consignments were taken up for detailed examination, it was the responsibility of the CHA to bring the exporter or his authorised representative before the Customs which he failed to do. Instead, he brought Shri S.K. Maheshwari who was only a proprietor of the Hindustan Shipping and he was no....
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....ported in 2011 (268) E.L.T. 448 (A.P.) held as follows : "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 of corruption in receiving Rs. 150/- as consideration for each such blank shipping bill would necessitate imposition of the maximum punishment which, under the CHALR, is of revocation of the license of the CHA. Mere suspension of ....
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....a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or his employees. The decision is best to be left to the disciplinary authority save in exceptional cases where it is shockingly disproportionate or mala fide. That is not the case here." 10.7 In the light of the decisions of the Hon'ble High Courts (supra) I am of the view that there is no case for display of sympathy in the instant case. Further, in the emerging security environment, wherein export and import transactions are used to smuggle out or smuggle in arms and ammunitions, drugs and so on, the responsibility on the CHA is very onerous and if anyone is found acting in a manner in complete disregard of such responsibility, exemplary punishment needs to be meted out. 11. Therefore, I am of the view that the revocation of the CHA licence by the Commissioner of Customs in the impugned order is sustainable in law and should not be interfered with. Sd/- (P.R. Chandrasekharan) Member (Technical) DIFFERENCE OF OPINION 12. The following difference of opinion is placed before the Hon'ble Vice Presiden....
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.... as well as the list of witness. In this case neither any witness was called for examination nor the appellant was allowed any cross-examination therefore the impugned order is bad in law. He also submitted that there is a clear violation of natural justice as the impugned order has been passed without giving an opportunity to the appellant for cross-examination of the witnesses. He contended that the conclusion of the inquiry report is wrong and very harsh punishment is given to the appellant which is not commensurate with the offence if any committed by the appellant. He relied upon the various case laws as mentioned by the learned Member (Judicial) in para-3 of his order and also the CESTAT Order No. A/576/2011/CSTB/C-I dated 20-12-2011 in the case of M/s. Vipul Pranlal Doshi [2012 (279) E.L.T. 427 (Tri. - Mumbai)], S.S. Clearing & Forwarding Agency Pvt. Ltd. reported in 2011 (263) E.L.T. 353 (Bom.) and K.S. Chhaya & Co. reported in 2011 (265) E.L.T. 65 (Tri.-Ahmd.). He also relied on the order-in-original No. CAO/47/2010/SLM, dated 9-6-2010 passed in case of M/s. Daroowala Brothers & Co. wherein a similar facts and circumstances of the case lighter punishment was ordered on the....
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....ad-II v. H.B. Cargo Services - 2011 (268) E.L.T. 448 (A.P.) (3) Commissioner of Customs (General) v. Worldwide Cargo Movers - 2010 (253) E.L.T. 190 (Bom.) (4) Shree Venkatesh Shipping Services P. Ltd. v. C.C.(G), Mumbai-I - 2010 (261) E.L.T. 880 (Tri.-Mumbai). 19. After hearing both the sides, I find that first point to be decided is whether the enquiry officer has conducted the enquiry as per the Regulation 22 of the CHALR. From the records of the case it is seen a personal hearing was given to the appellants on 24-1-2008 and the CHA did not reiterate for cross-examination of the officers listed as witness. Personal hearings were further given on 5-8-2008 and 12-8-2008 and CHA did not appear for the personal hearing to put up his case before the enquiry officer they cannot complain at this stage that sufficient opportunity was not given to them for defending their case. Moreover the enquiry was conducted regarding violation of Regulation 13(a) & 13(d) of CHALR. This is a fact on record that the CHA did not get any authorization from the exporter on whose behalf he was filing the export docu....