TaxTMI 
TaxTMI 
2015 (4) TMI 1052
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.... shipping bill dated 23-8-2010 for the export of the consignment. On 25-8-2010, unsealed containers on a trailer with the export goods were carted into the CFS. When the goods were de stuffed for examination, some of the goods were found to be non-basmati rice (prohibited goods) concealed behind the bags of dal husk. It was claimed by the appellant that on being informed by his employee Shri Ramdas Gadge about this incident, the Director Sohel Kazani informed the CFS and Commissioner of Customs on the next morning about the incident, investigations were undertaken by the Customs which resulted in the suspension of the CHA license under Regulation 20(2) of the Custom House Agent Licensing Regulations (CHALR) vide order number 32/2010, dated 8-12-2010 passed by the Commissioner of Customs, Mumbai. Thereafter the Commissioner of Customs vide his order number 37/2010, dated 14-2-2011 revoked the suspension order pending enquiry under Regulation 22 of the CHALR, 2004. The appellant was issued notice on 25-7-2011 under Regulation 22 for violation of Regulations 13(a), 13(d), 13(e), 13(n) and 13(o). During the enquiry proceedings, the presenting officer cross-examined the persons concerne....
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....t was stated that they had received the authority letter supported by the certified copy of IEC No. of the exporter which was found correct on the DGFT website and therefore, there was no reason for them to make further enquiries. Regarding the violation of Regulation 13(n) which requires the CHA to discharge duties with speed and efficiency, the plea is that they did not attempt to obtain the let export order on the same evening when the goods were carted in. The enquiry does not show that any specific Customs officer was asked to expedite the let export order. On the finding that the appellant is a habitual offender having been penalised vide order dated 19-2-2013 issued by the Commissioner of Customs, it was submitted that Hon'ble Tribunal vide order numbers S/730-732/2013/CSTB/C-I, dated 6-5-2013 has granted stay. 5. The learned AR appearing on behalf of Revenue reiterated the findings of the Commissioner. On the contention of the learned Counsel that the appellant had no prior knowledge of prohibited goods were being exported, he stated that mens rea is not necessary to be established in cases of offences under the Licensing Regulations. The ld. AR relied on the judgme....
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....t, we find that as the CHA did not know the credentials of the person who pretended to be a representative of the exporter nor did he verify personally from Shri Nadel Khan about the identity of Shri Anand, he obviously could not have given any advice to the exporter. Neither can it be said that the appellant made a genuine effort to find out the real exporter to whom advice could and should have been tendered. The inquiry officer in his report has referred to Para 22 of the Commissioner's order 37/2010, dated 14-2-2011 stating that "The culprit Mr. Anand Khursiza who was arrested has nowhere implicated them in his statements recorded by SIIB. In absence of the same it cannot be said that the CHA was either having knowledge or had any connivance in the matter. Moreover, it is evident from the letter dated 21-9-2010 issued by SIIB(X), JNCH that the SIIB Department was satisfied about the innocence of the CHA and therefore, it was mentioned in the said letter that if he fails to bring the exporter before the investigating officer a serious view against the CHA would be taken". We find that this is only a preliminary finding of the Commissioner pending the detailed inquiry under Regul....
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....rongly and inappropriately invoked by the Department. 6.4 Regarding the last charge of violation of Regulation 13(n), we find that the appellant did not verify the antecedents of the exporter. It would be very naive on the part of the exporter to believe any person who comes forward with the IEC number of an exporter. Obviously any one can get hold of an exporter's name and IEC number, forge authorizations of the exporter and then present the papers to a CHA for Customs clearance. The CHA cannot be exonerated of the serious mistake committed by him in not making true efforts to verify the credentials of the exporter. The CHA could have simply lifted the telephone and made an effort to speak to the exporter. The violation of Regulation 13(n) is certainly proved. 7. It was strongly argued by the ld. Counsel that the IO had dropped all the charges, whereas the Commissioner established all charges to be true. We have gone by the facts of the case and have come to the conclusion that the charges are proved except the charge of violation of Regulation 13(o). In the case of Delta Logistics (supra) it was held by the Mumbai High Court that the Commissioner, being the decidi....
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....ir obligations as mentioned above". Reliance is also placed on the Hon'ble Madras High Court decision in the case of Sri Kamakshi Agency v. Commissioner of Customs, Madras - 2001 (129) E.L.T. 29 (Mad.) in which the Hon'ble High Court held that "the grant of license to a person to act as Custom House Agent is to some extent to assist the department with the various procedures such as scrutinizing the various documents to be presented in the course of transaction of business for entry and exist of conveyance or the import or export of the goods. In such circumstances, great confidence is reposed in a Custom House Agent. Any misuse of such position by the Customs House Agent will have far reaching consequences in the transaction of business by the Custom House officials. Therefore, when the applicant who had thirty years of experience as Custom House Agent, when he paved the way for his Power of Attorney to indulge in serious malpractices which ultimately resulted in loss of revenue to the Customs House to the extent of more than 80 lakhs, there is every justification in the respondents in treating the action of the applicant as detrimental to the interest of the nation and pass the f....