AI Drafter 
TaxTMI 
TaxTMI 
2015 (7) TMI 924
X X X X Extracts X X X X
X X X X Extracts X X X X
....rmi Expo and M/s. J.M. Traders and it was found that the CHA who undertook the Customs clearance transactions was the appellant P.B. Nair C&F Pvt. Ltd. Shri Sopan Dhamale, Manager and Shri C.H. Menon, Director of the CHA firm, in their statements recorded under Section 108 of the Customs Act, 1962 admitted that they had allowed Shri Euregen Ashley to use their CHA licence independently for monetary consideration and that in respect of parties of the said Shri Ashley, the role of the CHA firm was limited to the point of filing online check lists of the bills of entry. It was further admitted by them that Shri Asley had his separate establishment and had provided CHA services to his clients using the CHA licence of the appellant. It was also admitted that the CHA firm had employed sub-agents, Shri Euregen Ashley of Able & Co. for undertaking import transactions and Mr. Martin Joseph of M/s. Akanksha Shipping for undertaking export transactions. For using the CHA licence, Shri Ashley gave Rs. 2500/- per 20 feet container, Rs. 3000/- for a 40 feet container and Rs. 2500/- for LCL consignments. During the years 2008-09 and 2009-10, out of the total 89 import consignments handled by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owing in the oral submissions made before this Tribunal on 3-12-2014 :- (a) Against the action initiated under the Customs Act in respect of undervaluation of laminated sheets, the importers M/s. J.M. Traders and M/s. Kirmi Expo had approached the Settlement Commission admitting to undervaluation and by paying the differential duty of Rs. 3,34,153/- and Rs. 3,66,241/- along with interest thereon and the Settlement Commission had settled the matter and granted immunity from prosecution on payment of a penalty of Rs. 10,000/- each by the importing firms. The appellant CHA and Mr. Eurgene Ashley had also approached the Settlement Commission against the penalties imposed on them and the Settlement Commission had granted immunity to the appellant from payment of penalty and prosecution under the Customs Act by observing that there was no substantive evidence to establish their involvement in misdeclaration of value and evasion of duty. In a similar matter pertaining to A.M. Ahamed & Co. wherein also CHA licence was revoked, the parties therein had approached the Settlement Commission which had upon confirmation of differential duty liability, interest and nominal fine and penalt....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Settlement Commission had specifically mentioned in para 11 (sub-para titled "Prosecution") that "Revenue is at liberty to continue the proceedings under the CHA Licensing Regulations, 2004 against the CHA M/s. P.B. Nair C & F Pvt. Ltd. as per law" which clearly show that CHALR proceeding is a separate and independent proceeding and therefore, the conclusions drawn in the proceedings under the Customs Act, has no relevance to the proceedings under the CHALR, 2004. He further submits that both Shri Sopan Dhamle, Manager and Shri C.H. Menon, Director of the appellant CHA firm had confessed to allowing the CHA licence to be used by Shri Eugene Ashley independently and for monetary consideration. These statements given before the DRI under Section 108 of the Customs Act have not been retracted at all and has evidentiary value in the CHALR proceedings. He also relies on the decision of the Hon'ble Bombay High Court in the case of Worldwide Cargo Movers [2010 (253) E.L.T. 190 (Bom.)] wherein, it was inter alia held that in departmental proceedings, it should only be seen that principles of natural justice has been followed and the findings are justified from the material on record. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ho sought their own clients, handled their imports using the CHA licence of M/s. P. B. Nair C & F Pvt. Ltd. and raised his own bills to the clients; (iii) that as per the understanding between him and Mr. Ashley, the latter gave photocopies of import invoices, packing list and bill of lading to his employee Mr. Dhamle on the basis of which Shri Dhamle filed the checklist bill of entry using their online facility; (iv) thereafter all the activities under the said bill of entry was done by Mr. Ashley; that the same included presenting the goods for examination to the Customs and delivery of 'out of charge' goods to the importer; (v) sometimes Mr. Ashley filed check-list bills of entry at the CMC window at the Custom House using the CHA annexure duly signed by him (C.H. Menon); Shri Ashley handled all import formalities; (vi) Shri Ashley had provided authorisation letters, however they did not insist for it in all the cases; (vii) that neither any of his employees interacted with the importer/parties handled by Mr. Ashley; (viii) that for offering this facility Shri Ashley gave him Rs. 2500/- per 20 fe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not having proper authorizations for undertaking the transactions from the importers; and (c) Regulation 13(d) of not advising the client to comply with the provisions of the Customs Act stand clearly cannot be faulted. It is obvious that if the CHA did not know or meet the importer/exporter, he could not have rendered any advice to his client. Therefore, we do not find any perversity or unreasonableness in the findings of the said authorities. 5.4 As regards the charge of contravention of Regulation 13(n) of non-discharge of their obligations with utmost speed and efficiency, Shri C.H. Menon in his confessional statement has admitted to non-verification of the correctness of the classification declared in the bills of entry handled by Mr. Ashley. Later on it was found that M/s. J.M. Traders and M/s. Kirmi Expo had misdeclared the classification of laminated sheets imported by them and this position has been admitted by the importers themselves before the Settlement Commission. If that be so, the appellant CHA could not be said to have discharged his duties and obligations with any efficiency at all. It is thus evident that the appellant has been grossly negligent in the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ingly. 5.6 In H.B. Cargo Services [2011 (268) E.L.T. 448 (A.P.)], the hon'ble Andhra Pradesh High Court while dealing with revocation of a CHA licence held as follows :- "12. 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 of a serious nature, an order of suspension may suffice. On the contrary, when revocation is directed it has to be only in cases where the infraction is of a serious nature warranting exemplary action on the part of the authorities for, otherwise, two types of actions would not have been provided for. Primarily it is for the Commissioner to decide as to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er as CHA on the ground of petitioner having committed breach of statutory regulations and the misconduct by misusing its licence. In the opinion of this Court, once the decision of the respondent Authorities that the petitioner committed violation of statutory regulations and the misconduct is found to be within the legal parameters, all the legal consequences as a result of such violation and the breach have to follow. The case of the petitioner being the case of contravention of said regulations and misuse of licence as CHA, the respondent Authorities have rightly revoked the licence of the petitioner. The said decision having been arrived at by the respondents, after taking into consideration all relevant material and the said Regulations, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational. Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment de hors the doctrine of proportionality. The petitioner having failed to point out any perversity or unreasonableness on the part of respondent Authorities warranting jud....