Customs, Excise and Gold Tribunal - Mumbai
Neptune Clearing Agency vs Commissioner Of Customs (Gen.) on 5 March, 2007
ORDER Archana Wadhwa, Member (J)
1. The present appeal is against the impugned order passed by the Commissioner of Customs, Mumbai, vide which he has ordered revocation of CHA licence of the appellants and forfeiture of the entire amount of security deposit.
2. We have heard Shri H.R. Shetty, Ld. Advocate, appearing for the appellants and Shri Dewalwar, Ld. DR appearing for the revenue.
3. As per facts on records, one Shri V.S. Katti, CHA employee made amendments in Bill of Entry filed for clearance of self adhesive tape and assessed by the group appraiser attracting duty of 40%. The said rate of 40% was reduced by the employee to 20%. Subsequent to detection of above, statement of Shri V.K. Katti, were recorded wherein he admitted tampering with the rates of duty but submitted that he was under a belief that self adhesive tape was chargeable to duty @ 20% and that is how he corrected the duty. Shri C.M. Shukla, proprietor of CHA in his statement recorded on 3-2-98, deposed that he came to know about the said correction by his employee, when he was called by Group Appraiser. He admitted the wrong done by his employee and immediately deposited the less charge of Rs. 8,353/- on 9-1-98 itself.
4. On above basis enquiry was conducted against the CHA and as per enquiry report, Shri Katti was found to be guilty of tampering with the rates of duty in the Bill of Entry.
5. Proceedings were also initiated against the CHA for revocation of his licence, which culminated into impugned order.
6. The Commissioner has observed in his impugned order that serious misconduct of forgery is attributable to Shri Katti, the employee of CHA. The said misconduct of the employee stands confirmed by the proprietor of the CHA firm but there is no indication that the management has taken any action against the employee. However, it is on record that Shri Katti was dismissed from his service immediately after the incident was brought to the notice of the CHA management. The above conduct of CHA firm has been held to be an after thought by the Commissioner. We observed that the proprietor in his statement recorded in February 98 has deposed that he came to know about the misconduct of his employee in January 98, when informed by the Group Appraiser. As such, he could not have dismissed Shri Katti from their service prior to the said date. The fact that Shri Katti was acting on his own has also come on record by the answers given by him during his cross examination. At this stage, we take note of the Tribunal's decision in the case of P.B. Nair C & F Pvt. Ltd. v. CC (Gen), Mumbai holding that where employee of CHA acted on his own in forging cash duty paid stamps, suspension of CHA licence was not appropriate, especially when the CHA immediately made good short fall in duty. In the instant case also we find that the short charge of Rs. 8,353/- was paid by the CHA firm immediately in informing.
7. The adjudicating authority has also referred to another case against the same appellant as regards aiding of fraudulent export in which enquiry proceedings have been initiated and are still being continued. Inasmuch as the said enquiry proceedings have not been finalized, it was not proper for the adjudicating authority to draw support from the same for the purposes of revocation of licence.
8. Further, the Commissioner has referred to mis-conduct on the part of the said CHA in case of seizure of Narcotic Drugs in August 2000 by the Police department, wherein the persons involved have been using the CHA licence of the appellants. We find that though the adjudication proceedings for revocation of the licence in that case are still in progress and thus subjudice. Ld. Advocate has drawn our attention to the criminal proceedings instituted by the state against the said appellants. Vide its order dated 16-5-2002, Additional Sessions Judge, Raigad has exonerated the appellant on the ground that the evidence not cogent and convincing to prove the ingredients of the criminal conspiracy. As such, the appellant stand acquitted in the above offence. Accordingly, we find that the reference by the adjudicating authority to the said incident for the purpose of revocation of licence is not appropriate.
9. In view of the foregoing discussion, we set aside the impugned order of the Commissioner of Customs and allow the appeal with consequential relief to the appellants.
(Pronounced in Court on 5-3-2007)