Custom, Excise & Service Tax Tribunal
M/S A.V. Global Corporation Pvt. Ltd vs Cc, New Delhi on 15 January, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 15.1.2014
Appeal No. C/492/2010-SM
[Arising out of Order-in-Original No. 09/POLICY/VKG/2010 dated 24.6.2010 passed by the Commissioner of Customs, New Delhi]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
M/s A.V. Global Corporation Pvt. Ltd. Appellant
Vs.
CC, New Delhi Respondent
Appearance:
Ms. Jaydeep Kaur, Advocate - for the appellant Shri R. Puri, D.R. - for the respondent Coram : Honble Mr. Justice G. Raghuram, President Final Order No. 50131/2014 Per Justice G. Raghuram :
The New Delhi Commissionerate issued a Show Cause Notice dated 19.11.2009 to explain why the appellant should not be held responsible for all acts and omissions of its employee in regard to employment, in terms of Regulation 19(8) of the Customs House Agents Licensing Regulation 2004; and why a part or whole of the security of Rs.75,000/- furnished by the appellant at the time of issue of licence be not forfeited under Regulation 20(1) for failure in complying with conditions of the bond executed by the appellant under Regulation 10, and failure in complying with Regulation 19(1) and 19(8). In para 2, 4 and 5 of this notice, it was alleged that appellant had applied to custom authorities for issuance of H card to one of its employees Shri Alijah Taqvi on 19.1.2008; had projected him as being a 12th class passed candidate; and had enclosed with the application a Senior Secondary School Certificate issued in 1993 by the National Open School, Government of India, New Delhi. The appellant had also submitted a bond and undertaking along with the application in which the appellant CHA undertook to assume liability for any action in terms of CHA Regulation, 2004, if the facts stated in the application are found to be incorrect. According to the Show Cause Notice, the appellant as the CHA was required to ascertain correctness of the documents submitted before the Customs authorities. The Show Cause Notice referred to Regulation 19(1) which inter alia requires a person employed to assist a CHA to have the minimum qualification of 10+2 or equivalent; and to employ such person after obtaining the permission of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, designated by the Commissioner of Customs for the purpose. Regulation 19(8) requires the CHA to exercise such supervision as is necessary to ensure the proper conduct of its employees in the transaction of business and enjoins that the CHA would be responsible for all acts or omissions of its employees in regard to the employment.
2. Eventually, the impugned Order No. 09/Policy/VKG/2010 dated 24.6.2010 was passed forfeiting Rs.40,000/- out of Rs.75,000/- deposited by the appellant, for violation of Regulation 19(1) and 19(8), the ground that the appellants employee Shri Alijah Taqvi did not possess the qualification prescribed by Regulation 19(1) and that copy of the Senior Secondary School Certificate 1993 produced in support of the said employees educational qualification was fake.
3. I notice that in Trade Wings Ltd. Vs. CC, New Delhi - 2013 (290) ELT 401 (Tri.-Del.),this Tribunal considered substantially similar circumstances and allowed the appeal preferred by the Customs House Agent therein. In Trade Wings the appellant CHA had no knowledge about the correctness of the certificate submitted by a G card applicant who employed on 19.5.2006. This employee had served not only the appellant Trade Wings but several others. On the ground that the employees educational qualification was not in terms of the Regulation, proceedings were initiated against Trade Wings and Rs.20,000/- out of the security deposit furnished, was fortified. This Tribunal concluded that no malafide intention of the appellant was brought out and the proceedings were based on the mandate to Regulation 19(8) of the Regulation which requires supervision of the CHA to ensure proper conduct of its employees involved in a transaction of business as an agent and that this Regulation does not postulate the requirement of verification by a CHA of the educational qualification of a person presented for certification, for employment as an assistant of a CHA.
4. Regulation 19(1) enables a Custom House Agent to employ any number of persons to assist him. This Regulation also enjoins that the minimum educational qualification of a person intended to be so employed shall be 10+2 or equivalent. In the absence of any requirement enjoined on the CHA to conduct an inquiry into the genuineness of the educational certificates produced by a person intending to be employed with the CHA for assisting it, we find no requirement of any such due diligence by the CHA.
5. In the light of the decision of this Tribunal in Trade Wings Ltd. the impugned order is unsustainable and is accordingly quashed. There shall be however no orders as to costs.
(Justice G. Raghuram) President RM 1