TaxTMI 
TaxTMI 
2006 (4) TMI 156
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....stoms (Preventive), West Bengal, for permission of loading of Indian Milling Wheat in barges at IWAI Jetty, Haldia and export those goods there from to Bangladesh. The said application was examined and permission was denied on the ground that the said Jetty was not an approved place for loading of export goods under Section 8 of the Act and SEL was informed accordingly by letter dated 31st January, 2003. (b) The said SEL thereafter submitted two Bills of Export both dated 7th February, 2003 through their appointed Custom House Agent, viz. M/s. Overland Agency ("OEL") for export of the Indian Milling Wheat to Bangladesh through TT Shed LCS. The Bills of Export were duly appraised and handed over to the said Custom House Agent keeping the original for office records. (c) It appeared that there was an insertion in the duplicate copies of those Bills of Export by incorporating the handwritten word 'Haldia' in the box meant for mentioning the LCS and those consignments were loaded at IWAI Jetty on barges, namely, M.V. Kader-I and M.V. Shovonraj. The loading was done at IWAI Jetty, Haldia. Thereafter, the loaded vessels moved to Namkhana LCS where those vessels remained....
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....ording to the Tribunal the goods were neither dutiable nor were those prohibited ones and as such, the provisions of Section 114 of the Act were not attracted. It was further held that there was no mens rea on the part of either the exporter or the appellant before the Tribunal by exporting the goods from Haldia. It was further pointed out that the Custom House Agent was not responsible for the alleged interpolation. (h) In the meantime, a notice under Regulation 23(1) of CHALR, 1984 was issued upon the Custom House Agent to show-cause why their Custom House Agent licence should not be revoked by the competent authority under Regulation 21 of CHALR, 1984 alleging violation of Regulations 14(d) and 14(1) of the CHALR, 1984 for not advising their client to comply with the provisions of the Act, inasmuch as, they did not advise their client, namely, SEL, that the said export goods could not be loaded and exported through IWAI Jetty, Haldia and by not intimating the concerned Assistant Commissioner of Customs about the non-compliance of the provisions of Section 33 of the Act and for not ensuring that all the documents prepared and presented by them or on the....
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....; As on earlier occasions such permissions were given by the Commissioner of Customs for loading of the goods from IWAI Jetty, Haldia, SEL by their letter dated 3rd February, 2003 informed the Commissioner of Customs (Preventive), West Bengal that, in anticipation of getting the permission, three railway racks were booked from Faridabad for godown to Haldia and the total quantity of milling wheat was 6904.8 M.T. and those had already reached Haldia and were unloaded in the godown belonging to IWAI Jetty authorities for being loaded in barges. It was further pointed out if they were to carry the entire goods from Haldia to TT Shed, Kolkata for loading purpose that would cause immense hardship and inconvenience to them. They requested the Commissioner of Customs to reconsider the decision and to allow them loading of the goods from IWAI Jetty at Haldia. (v) M/s. West Bengal Essential Commodities Supply Corporation, a Government of West Bengal Undertaking, vide their letter dated 4th February, 2003 to the Commissioner of Customs (Preventive) intimated that they got an order For export of 70,000 M.T. of milling wheat to Bangladesh through their associate expo....
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....by order dated 5th January, 2004 found the agent guilty and in exercise of power vested under Regulation 21 of CHALR, 1984 revoked the Custom House Agent Licence granted to Overland Agency with immediate effect and also passed an order of forfeiture of whole security deposit at the time of granting licence. (k) Being dissatisfied, OLA preferred an appeal before the Tribunal and the Tribunal by order dated 4th October, 2005 set aside the order passed by the Commissioner of Customs holding that there was no mala fide on the part of the Custom House Agent in presenting the said Bill and in view of the fact that the Tribunal by order dated 4th May, 2005 had already set aside the order of imposition of penalty, there was no just reason for cancellation of the licence. 3. Being dissatisfied with the aforesaid two orders dated 4th May, 2005 and 4th October, 2005 passed by the Tribunal, the Commissioner of Customs (Preventive) has come up with the present appeal under Section 130 of the Act. 4. Mr Samaddar, the learned Advocate appearing on behalf of the appellant, has vehemently contended before us that the Custom House Agent had mislead the Customs Officials by presenting ....
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.... further contends that it is the Customs Officials who themselves cleared the goods knowing fully well that the IWAI Jetty was not a loading place for export and in the past also on several occasions such permissions were granted. Mr Dutt submits that once the Commissioner of Customs issued such permission in violation of the Act, the Custom House Agent now cannot be blamed for not pointing out to the Commissioner of Customs such illegality. Mr. Dutt contends that his client had no mala fide motive in presenting such Bill when competent Customs Officials have already permitted such export and even charges for superintendence of loading had been taken by the Customs Authority. Mr. Dutt submits that Customs Authority itself having accorded permission now cannot put the blame upon the poor Custom House Agent. According to Mr. Dutt, his client merely followed the existing practice which was previously approved by the Customs Officials for exportation of the goods from Haldia. Mr. Dutt lastly contends that even in the statement under Section 108 of the Act his client specifically stated that insertion was not made by him but it was made by the agent of the exporter and that too, on the ....
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.... use, if the Customs Officers themselves have permitted exportation, there is every scope of bona fide belief of the Custom House Agent that such permission must be in accordance with the provisions of the Act. It is not the duty of a Custom House Agent to point out to the Assistant Commissioner of Customs or the Deputy Commissioner of Customs that their acts are not in conformity with the provisions of the statute or to advise them to act in accordance with law. 11. Thus, there was no violation of Regulation 14(d). Similarly, according to Regulation 14(1), it is the duty of the Customs House Agent to see that all documents prepared or presented by him or on his behalf are strictly in accordance with orders relating thereto. In the case before us, the Customs Office having accepted the money deposited for supervising the export goods from Haldia, the document presented by him showing that the goods will be exported from Haldia cannot be said to be not in conformity with the orders relating to the said export. Thus, there was even no violation of Regulation 14(1). 12. We, thus, find that the order of the Commissioner of Customs (Preventive), West Bengal revoking the licence of....