AI Drafter 
TaxTMI 
TaxTMI 
2016 (10) TMI 664
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1984. 2. Action was initiated under regulation 22 of the said Regulations following investigation into alleged offences in connection with the import of fabrics by M/s Nova Scotia Overseas. Seventeen cartons of fabrics declared as 'polyester woven dyed fabrics/viscose polyester blended fabrics' were landed in India by Shri Ramesh Jain and Shri Rishab Jain using the Import Export Code (IEC) of M/s Nova Scotia Overseas belonging to one Shri Jaiprakash Saad. The test report of the third consignment declared as 'viscose polyester blended fabric' was used to clear subsequent cartons. The said goods, however, were allegedly fabrics subject to duty of Rs. 40 per sq. meter and Rs. 95 per kg instead of the assessed rate of 10% ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... M/s Bajaj Enterprises was not acceptable to the Commissioner of Customs as it lacked acknowledgement by customs authorities. 5. Though the bills of entry were signed by Shri Yogesh Bajaj and notwithstanding the claim that Shri Amit S Momayya was an employee, the impugned order, relying on a cancellation request for 'G' card received on 2nd December 2008 and issue of 'G' card to Shri Momayya through M/s D V Shipping the misuse of licence was held to have been established. It was also held that the obligation of an agent did not end with mere signing of bills of entry but also extended to clearance work which having been undertaken by Shri Momayya established the failure to handle it personally or through authorized employee. That t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an CUS.A.A.24/2012 Page 11 ordering of priorities, or an appreciation of the aggravating (or mitigating) circumstances. In this case, the Commissioner and the CESTAT (majority) hold that "there is no finding nor any allegation to the effect that the appellant was aware of the misuse if the said G cards", but do not give adequate, if any weight, to this crucial factor. There is no finding of any mala fide on the part of the appellant, such that the trust operating between a CHA and the Customs Authorities (as a matter of law, and of fact) can be said to have been violated, or be irretrievably lost for the future operation of the license. In effect, thus, the proportionality doctrine has escaped the analysis. 12. Learned Senior Standing Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lone. A penalty of revocation of license for this contravention of the CHA Regulations unjustly restricts the appellant's ability to engage in the business of the CHA for his entire lifetime. As importantly, it skews the proportionality doctrine, substantially lowering the bar for revocation as a permissible penalty, especially given the dire civil consequences that follow. On the other hand, the minority Opinion of the CESTAT, delivered by the Judicial Member, correctly appreciates the balance of relevant factors, i.e. knowledge/mens rea, gravity of the infraction, the stringency of the penalty of revocation, the fact that the appellant has already been unable to work his license for a period of 6 years (now 8 years), and accordingly s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s House Agent (or Customs Brokers as they are now designated) are professionals licenced under the Customs Act, 1962 to render assistance to importers and exporter who would otherwise have to recruit specialized staff at the location of gateway ports which may be at a distance from their normal place of operation. They are, therefore, required to be proficient in the customs operation and procedure and to ensure that importer/exporter posses appropriate bona fides and act in conformity with the Customs Act, 1962. Naturally, they are not expected to conspire with those attempting to violate the law of the land. Such as do that abet would be subject to the penal provisions of the Customs Act, 1962 that are invoked against the offending ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the Learned Counsel for appellant, would evidence otherwise. It appears that Shri Momayya has not been established to be a former employee of the appellant-agent. Consequently the charge of sub-letting/transfer, as well as failure to handle the consignment through an authorised employee or personally, fails. 15. It is also seen from the records that an authority letter was indeed obtained from the ostensible importer and its existence has been acknowledged as such by the Settlement Commission. The Regulations do not require that each and every authorisation should be acknowledged by a customs officer. As long as authority letter is in possession of the agent, compliance with the Regulation cannot be disputed. It must....