Cus - Revocation of CHA licence - Commissioner is best placed to understand importance of CHA in Customs area and trust reposed in him by department - appeal dismissed: CESTAT
By TIOL News Service
MUMBAI, NOV 14, 2014 : THE Commissioner of Customs (General), NCH, Mumbai by an order dated 07.05.2013 revoked the CHA licence and also ordered forfeiture of entire amount of security deposit.
Aggrieved, the CHA is before the CESTAT.
The brief facts relating to the case are as follows:
The DRI seized a consignment of 86510 Kgs. of “Red Sanders” at NhavaSheva on 22/07/2010. The said consignment was attempted to be exported out through JNPT in the name of M/s. LeedImpex, Mumbai. The modus operandi adopted was that a consignment of M.S. Pipes was stuffed in a container in a private godown near Rasayani, Panvel , where the Customs clearance formalities were completed. After examination, the container was sealed and was out-gated from the CFS on a private vehicle. The consignment of M.S. Pipes loaded in the container was replaced by red sanders by breaking open the bottle seal and another bottle seal bearing a different serial number was used for sealing. Investigation conducted revealed that one Shri Sejpal had arranged for export documentation using the CHA licence& also signed the export documents. Shri Sejpal in his various statements recorded under Section 108 of the Customs Act, 1962 narrated the sequence of events and accepted that he was not authorised to attend the Customs clearing/documentation work and he had used the CHA licence and involved employees of the said CHA firm for documentation purpose. He also submitted that he had undertaken this work with the knowledge of the Director of the CHA firm.
After issuance of charge sheet and the completion of inquiry proceedings, as mentioned, the Commissioner revoked the licence.
Before the CESTAT the appellant inter alia submitted that it cannot be said that the CHA did anything wrong as the export documentation was signed by Shri Sejpal on his own account; that the licence was suspended in 2011 and the appellant has been out of business since then and, therefore, that should be sufficient punishment for violation, if any, committed by the CHA and the extreme harsh punishment of revocation of licence is not warranted in the circumstances of the case.
The AR reiterated the findings of the adjudicating authority and also submitted that Shri Sejpal had undertaken the work relating to the clearance of the export consignment without any authorisation and with the knowledge and connivance of the CHA firm; that subsequent authorisation received from M/s. LeedImpex was found to be a forged one and the authorisation letter of M/s. LeedImpex had been fabricated by the CHA which also shows their involvement in undertaking the illegal transaction; therefore, the charges against the CHA are clearly proved.
The Bench observed -
++ From the records of the case and also the inquiry officer's report, it is seen that the authority letter issued by M/s. LeedImpex in favour of the appellant is a fabricated one. The proprietor of M/s. LeedImpex has confirmed to the Investigating authority that his firm has never issued any such letter in favour of CHA. Therefore, the charge against the CHA of acting without an authorisation from the exporter is clearly established. In order to cover up the transaction, a fabricated letter has been produced by the CHA which has been found to be bogus as confirmed by the proprietor of M/s. LeedImpex. Thus the charge of contravention of Regulation 13(a) is established beyond any doubt.
++ It is clearly established from the statement of Shri Deepak Sejpal who in his statement recorded under Section 108 of the Customs Act has admitted that he was not authorised to attend the Customs clearing/documentation work and he used the CHA licence of M/s. Dhakane & Co. and it was done with the knowledge of Director Shri Ashok Pandurang Dhakane of the CHA firm. This is also corroborated by the statement of Shri Bala Baburao Jadhav and Shri Vinod Shinde, employees of the appellant CHA firm and, therefore, the charge of contravention of Regulation 13 (b) of having transacted the business through unauthorized persons also stands proved.
++ As regards the third charge of contravention of Regulation 13 (d), it is clear that the CHA never dealt with the exporter or the persons authorised by the exporter but dealt with another person, viz., Shri Deepak Dariyalal Sejpal. Therefore, the question of advising the client to comply with the provisions of the Act would not arise at all. In the light of these evidences available on record it is clear that the relevant provisions of the CHALR, 2004 have been violated by the appellant. It is in view of these violations and trying to cover up the violations by the CHA, the licence issued to M/s. Dhakane& Co. has been revoked by the Commissioner.
The Bench also relied upon the decisions of the Bombay High Court in CC (General) Vs. Worldwide Cargo Movers - 2006-TIOL-424-HC-MUM-CUS & Andhra Pradesh High Court in the case of H. B. Cargo Services - 2011-TIOL-198-HC-AP-CUS and held that the order of revocation passed by the adjudicating authority does not merit any interference.
The appeal was dismissed as being devoid of merits.
(See 2014-TIOL-2274-CESTAT-MUM)
