TaxTMI 
TaxTMI 
2015 (11) TMI 1021
X X X X Extracts X X X X
X X X X Extracts X X X X
....port consignments in the name of dummy IEC holders using the CHA license of the appellant for which they paid fixed charges per container to the CHA. Investigations also indicated that in the past, 10 consignments through which cigarettes were smuggled were cleared by the CHA. For customs clearance work in the Customs area, M/s Sea Speed had three employees, who were issued H category passes by the appellant CHA. For clearance of consignments, the director of M/s Sea Speed Logistics filed the bills of entry online by using the ID/password of the appellant. The Director of the appellant CHA Mr.Uday Khanna admitted these facts also and stated that he had falsely declared to customs authorities that the employees were on his payroll. 2.1 The appellant were charged with violation of Custom House Agents Licensing Regulations (CHALR) 2004. Specifically, the regulations violated are stated to be Regulation 12 no license shall be sold or otherwise transferred; Regulation 13 (a) CHA to obtain an authorisation from the company by whom he is employed as CHA; Regulation 13 (b) CHA to transact business personally or through approved employees; Regulation 13 (d) CHA ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... bill of entry for the subject consignment and they have not been made party to proceedings for confiscation of consignments cleared in the past. Regulation 13 (e) is also not violated because it has not been pinpointed as to what incorrect information had been imparted by them to the customer. The finding that the appellants actions led to smuggling of cigarettes is false because in the present case no show cause notice has been issued to them under the Customs Act. Therefore, Regulation 13 (n) is not violated. The IEC code was validly issued to Toyo India by DGFT and therefore, there is no question of violation of Regulation 13 (o) as the appellant produced an authorisation letter from the importer to the enquiry officer. The learned Counsel relied on the case of Ashiana Cargo Services Vs. Commissioner Delhi High Court 2014 (302) ELT 161 (Delhi) in which the Honble Delhi High Court set aside the revocation even though that case was more serious inasmuch as narcotics was smuggled. 6. The learned Assistant Commissioner (AR) appearing on behalf of revenue reiterated the findings of the Commissioner. He relied on the Bombay High Court judgement in the case of Worldwid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the bills of entry were filed in their name and once the CHA has agreed to receive charges from M/s Sea Speed, the fact that the entire administrative work relating to clearance was done by the employees of M/s Sea Speed under a mutual agreement, it cannot be said that the CHA license had been sublet or transferred. 10. As regards regulation 13 (a), it is seen that the appellant during the enquiry proceedings have produced an authorisation letter from M/s Toyo India, the IEC holder, although during investigations the Director of the appellant had stated that he had not obtained an authorisation. The genuineness of the letter has been doubted by the Commissioner because it is not dated and is not written on a proper letterhead of the company nor does it mention the details such as telephone number and fax number of the company. But the fact remains that the appellant had received import documents to be filed on behalf of the IEC holder. The flaws in the authorisation letter do not established beyond doubt that the same is not genuine. Customs did not verify the genuineness of the letter either by cross-examination or by signature verification by a forensic laboratory. There is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 14. The Commissioner in his conclusion has opined that the case involving smuggling of cigarettes with duty evasion of Rs. 20.79 crores in the name of dummy IEC holders by subletting of CHA license makes it incumbent upon the CHA to receive the most rigorous punishment. We do find it a little strange that, on the one hand the Commissioner is almost accusing the appellant of aiding in duty evasion of a large amount, yet, on the other hand he has not implicated the appellant under the Customs Act. In fact we find that the Commissioner has directly accused the appellant CHA of abetting the smuggling of foreign cigarettes. In paragraph 52 of the order, the Commissioner states that "Hence the present case where the CHA by their acts of omission and commission have aided and abetted and organised syndicate indulging in the smuggling of foreign origin cigarettes from Malaysia by mis declaration is a very serious one involving outright smuggling through the use of bogus IECs attempting huge loss of revenue to the government exchequer. The CHA has miserably failed in the discharge of their obligation by aiding and abetting in the smuggling of large quantity of cigarettes and thereby des....