TaxTMI 
TaxTMI 
2015 (12) TMI 1146
X X X X Extracts X X X X
X X X X Extracts X X X X
....ouse Agent Licence No.11/1030 was granted to the respondent under Regulation 10(1) of the Customs House Agents Licensing Regulations, 1984. The Directorate of Revenue had investigated the case of misuse of advance licence scheme by one Anthony D'Souza in the name of his two proprietory firms M/s.Tony Enterprises and M/s.Ventura Alloys and Electrics (India). The investigation revealed involvement of the respondent and that is how a notice to show cause was issued. That alleged aiding and abetting the importer in the evasion of import duty on import of blank audio and video cassettes by availing duty exemption under Advance Licence. 5. The Commissioner of Customs heard the respondent and thereafter issue a suspension order. That suspension order was passed under Regulation 20(2) of the Customs House Agents Licensing Regulations,2004. This was pending completion of inquiry. Against the order of suspension dated 4.5.2005, an appeal was preferred before the CESTAT and on 24.6.2005 that appeal was allowed. The order of CESTAT was accepted by the Commissioner of Customs and the licence became operative. That was with effect from 12.8.2005. Later on the inquiry concluded and the Inq....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Agent rather than his/her clients. If the agent has to guide the importers and exporters to ensure compliance with law, then, all the more the approach of the Tribunal cannot be sustained. This appeal, therefore, be allowed. 8. Mr. Shetty, learned Counsel appearing on behalf of the respondent, on the other hand, would submit that there is no merit in this appeal. The appeal has been admitted only on the reframed substantial question of law and that is whether on the facts and in the circumstances of the case and in law, the CESTAT is justified in setting aside the order revoking the agent's Customs House Agents Licence even after holding two charges levied against the Agent were proved and Regulations 13(a) and 13(k) of the Regulations have been violated. In that regard Mr.Shetty would submits that the Department or the Revenue cannot indulge in pick and choose. Mr. Shetty relied upon the compilation handed over to us and contended that there were two agents namely Mr.S. P. Pawar & Sons and M.D. Shipping Agency. Similar charges were levelled against them and similar outcome of the inquiry resulted in their licence being revoked. However, the Tribunal found that there is diff....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd who was paid 40% agency charges as commission. As far as Article of Charge II is concerned, what has been alleged is that violation of Regulation 13(a) is revealed. That is that the Customs House Agent shall obtain authorization from each of the companies, firms or individuals by whom he is for the time being employed as Customs House Agent and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs. In that regard what has been alleged is that the employees were operating independently on account of the arrangement between the proprietor of M/s. Sainath Clearing Agency and Mr.Dilip Shah. The authorization was not produced. 10. As far as Article of Charge III is concerned, the basis thereof is that if there is non compliance with the provisions of the Customs Act, it is the duty and obligation of the Agent to bring the matters to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. But the violations of the terms and conditions of the advance licence and scheme in that behalf by M/s.Tony Enterprises were not brought to the notice of the Competent / Proper Officer and this also is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e statements. Similarly, with regard to Article of Charge II , it is clear that no proforma was prescribed for Customs House Agents to obtain authorization from clients and that the signature on the bill of entry is the practice prevailing. Relying on the case of "P. P. Dutta Vs. Commissioner of Customs, New Delhi, (2001(136) ELT 1042)", it was urged that the statement of Mr.Dinesh Mehta will not enough to render a conclusive opinion. Mr.Mehta's statement is that he did not personally deal with any person from M/s.Tony Enterprises and that the business was procured and handled exclusively by his employees. Mr.Dilip Shah and Mr.Shantaram Dongre once again confirmed that they attended the Customs clearance of the consignment. If the said Mr.Dinesh Mehta was not directly involved in the customs clearance, then, to hold that he did not authorise his employees was improper. The Tribunal held that the Regulation may make it obligatory for the agent to obtain authorization from his client and that authorization should be in writing, however, the normal course of importation and clearance of the goods is that the importer would supply import documents such as Import General Manifest, I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt Licence which has been revoked for three years is enough penalty in peculiar facts and circumstances of the case. 17. We do not see how such a finding and conclusion of the Tribunal can be held to be perverse or based on no material. Mr. Shetty was right in relying upon the dates and events to submit that the inquiry commenced in this case on 24.10.2005. The Inquiry Officer submitted his report on 30.5.2007. The disagreement Memo is dated 30.7.2007, and the order in original is dated 20.12.2007. Therefore, from 20.12.2007 till 3.3.2011, the licence of the respondent was revoked and he could not, therefore, carry on any business. Consequently, from 3.3.2011 till date and despite repeated requests, the licence of the respondent has not been restored. He was, therefore, required to file the Writ Petition. 18. To our mind, the respondent, therefore, has suffered enough punishment and is visited with the sufficient penalties. In the case of two others and who are similarly situated, what the Tribunal found is that all the charges cannot be held to be proved. In that regard, the reliance placed by Mr.Shetty on the orders passed in the case of "S.P. Pawar & Sons" is appropriate. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....red out of customs charge and handed over by the CHA to his client, obligation of the CHA to CHALR comes to an end. It is not the obligation of the CHA to assume that post the clearance of imported goods it would not be taken to the address given in the Advance licence. Moreover, in this particular case, imported zinc ingots had on clearance from the Customs Department taken to the office of the transporter. In these circumstances, there could be no occasion for the CHA to suspect that the imported zinc ingots were not being taken to the destination as declared in the Advance licence namely the factory at Surat in Gujarat. Further under regulation 13(d) of CHALR the occasion to advice the importer would not arise because there was no occasion for the CHA to know or even suspect that the importer was not complying with the provisions of the Customs Act and/or advance licence under which the goods were cleared. This is more so as delivery to a transporter for carriage of goods at the direction of the importer would not by itself resulted in noncompliance of the Customs Act. 9. In this view of the matter, we do not see any reason to entertain question (b) as it is self eviden....
X X X X Extracts X X X X
X X X X Extracts X X X X
....issioner of Customs (Gen.) has observed as under: " The inquiry Officer in the inquiry report has observed that the two persons who admittedly have been forwarding the documents to the CHA were the regular clients of the CHA since 2003; that more than hundred consignments have been cleared by them, that accordingly the requirement of obtaining an authorization letter for each consignment does not arise and the same can be substituted by the declarations given by the importers for the bills of entry. I do not agree with the observations of the inquiry officer in this regard. I find that the inquiry officer in his inquiry report has rightly held that the CHA has accepted the documents through intermediaries i.e. Shri.Jatin M.Shah and Shri. Kaushal A. Shah and hence, they have not met the actual importers. The CHA's contention that it is regular business practice to accept business through middlemen, brokers and commission agents may be good for the trade, however, nothing stops the CHA from interacting directly with the importers thereafter, once the documents are received for clearance. Even for such business/ work coming through a middleman, there is nothing in CHALR w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 12. In view of this observations, we hold that when on similar charge in the case of Standard Shipping Agency wherein the enquiry officer held that charge is 'not proved' and Commissioner of Customs (Gen.) considering the report and thereafter, gave a finding that charges are proved and withdrew the order of suspension of CHA licence and made operative the CHA licence on forfeiture of security deposit. The appellant should be placed in similar situation." As far as this order is concerned, there is no material to indicate that this order of the Tribunal has in any manner been interfered with by a higher Court. 21. Thereafter, our attention is invited to the order passed in the case of "S.P. Pawar & Sons Vs. Commr. Of Cus. (General), MumbaiI, (2009(247) ELT 562(Tri.Mumbai))". As far as that case is concerned, what is revealed from the affidavit in reply of the respondent is that the violations alleged against the S. P. Pawar and Sons were identical. That was with regard to allowing one Mr. Ramdas Dhormale to act as authorized signatory without informing the department. Though the violation is termed as serious, the Tribunal held that revocation of licence is not a penalt....