TaxTMI 
TaxTMI 
2016 (12) TMI 635
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....3(e). 13(n), 13(o), 19(8) of CHALR, 2004. However, in the enquiry officer's report all the charges were held to be 'disproved' or 'not proved' except the charge of subletting in violation of Regulation 12 of CHALR 2004. The Ld. Commissioner in his findings held that the CHA is guilty for violation of regulations of sub-regulations (a), (d), (e), (n), (o) of Regulation 13 sub-Regulation 8 of Regulation 19 besides the crucial regulation 12 of CHALR 2004. Being aggrieved by the OIO the appellant filed this appeal. 2. Shri N.D. George, Ld. Advocate appearing on behalf of the appellant has submitted that the disagreement memo has only taken into account the views of the Presenting Officers whereas the defence put up by the appellant was totally ignored, the enquiry officer after detailed enquiry come to the conclusion that out of 7 charges leveled against the appellant, only one was proved whereas, 3 charges were disproved. There was no sufficient reason to reject the conclusion of the enquiry officer. He submits the entire basis of initiation of proceeding and conclusion by revoking the CHA License is the charge of subletting the license. He submits that outsourcing the services of ot....
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....s undisputed fact this fact is also undisputed that the CHA Licence of appellant was not sublet to nay other person under legal agreement, for the reason that even though there is some understanding of sharing of work, the fact remains that the documentation of import export were being done in the name of appellant in the capacity of CHA. In our view if the licence is sublet against the lease charges than during the lease period the lessee becomes the owner of the licence and all the documentation will be filed in the name of lessee, accordingly during the lease period the lessor will cease to be a Custom House Agent. As per the regulation this arrangement is not permissible as the licence is not transferable. Therefore merely because the CHA acted through various other persons but he presented himself as a CHA under his CHA licence, than no question can be raised that the licence was sublet. In our considered view the arrangement of working adopted by CHA will not amount to subletting of licence. This issue has been considered in the various judgements which are referred below: (i) In the case of Krishan Kumar Sharma (supra) held that- 6. We have heard the rival submissions. Th....
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....ed the business through an intermediary who is not his employee, can it be said that he has sub-let or transferred the business to intermediary. The Tribunal in the case of Commissioner of Customs v. Chhaganlal Mohanlal & Co. Ltd. [2006 (203) E.L.T. 435 (Tri. - Mum.)], held that if the Customs clearance has been done through intermediary and business was got through intermediary, the same is not barred by the provisions of CHALR, 2004 and it cannot be stated that the appellant has sub-let or transferred his licence. In the case of Krishan Kumar Sharma v. Commissioner of Customs, New Delhi reported in 2000 (122) E.L.T. 581 (Tri.), this Tribunal held that the mere fact of bills raised on the intermediary cannot be held against the CHA firm to prove that the CHA licence was sub-let or transferred. Therefore, in the light of the judgments cited above, the charge of violation of Regulation 12 is not established. As regards the violation of Regulation 13(a), the adjudicating authority himself has observed that the "I have no doubt to say that the CHA might have obtained the authorisation but it is surely not from the importer. Therefore, the authorisation submitted is not a valid one". T....
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....lients. Therefore, it can be concluded that the Transaction effected were within the four corners of the CHAS liabilities and responsibility as far as the consignment of M/s Velco and M/s R.S. Exports were concerned. The Commissioner, in accepting these findings of the Enquiry Officer, has accepted the above position. (b) When all documentation are made/handled as prescribed and procedures have been found to be correctly followed, by the CHA after obtaining authorizations from the clients, merely because they are alleged to obtain a deposit of Rs. 30,000/- from one Shri Gaonker will not be cause or case to bring them under the charge to have sold or and transferred the CHA licence. Surely a Transfer of CHA licence will not go hand in hand with subsequent obligations to be performed under the licence by the appellant. Transfer however temporary is therefore not inferred. The Article of Charge II that he was not knowing the Exporter M/s Velco Overseas and documents were given to him by Mr. Gaonkar and in his having obtained a deposit of Rs. 30,000/- from such unknown exporter, which are not proved in any case, would indicate business prudence and not sale or transfer of the licence....