Bombay High Court
The Principal Commissioner Of Customs ... vs Om Freight Forwarders Pvt Ltd on 19 April, 2022
Bench: K.R. Shriram, N.R. Borkar
942-CUAPP-2-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CUSTOMS APPEAL NO. 2 OF 2020
The Principal Commissioner of Customs (General) ... Appellant
Versus
Om Freight Forwarders Pvt. Ltd. ... Respondent
.........
Mr. Dhananjay Deshmukh for the Appellant.
Mr. Anil Balani for the Respondent.
.........
CORAM : K.R. SHRIRAM AND
N.R. BORKAR, JJ.
DATED : APRIL 19, 2022 P.C. :-
1. Heard counsel and considered the appeal memo. The proposed substantial question of law is as under :
"Whether the CESTAT is right in law in setting aside forfeiture of the entire amount of security deposit on the ground of termination of services of Shri Vijay Dixit was after violation of the Regulations and hence of no consequence ?"
2. There were two cases involved, one is regarding export cargo and the other is regarding import cargo. The Appeal preferred by Customs Department is only regarding the export cargo. Kanchan P Dhuri 1 / 4
942-CUAPP-2-2020.odt
3. Respondent is a Custom House Agent (CHA). There were two cases reported against Respondent in 2010. In both the cases inquiry proceedings were initiated by the Inquiry Officer and the proceedings were closed holding that the articles of charges not proved. Notwithstanding this, the Commissioner of Customs (General), Mumbai (COC), has held that Respondent is responsible for lack of adherence to Regulation 19(8) of the Custom House Agent Licence Regulations, 2004 (CHALR). The COC is unhappy with the supervision of Respondent over its employees. In his order dated 4th January, 2012, COC records as under :
"xxx xxx xxx xxx xxx xxx xxx
e. As regards the aspect of lack of supervision by the CHA
over their employees I observe that Shri Vijay Dixit despite being a temporary employee of the CHA and not having been authorized by the department to sign Customs documents has actually signed the declarations on the checklists for each of the 10 Shipping Bills which is in clear violation of Regulation 19(5) of CHALR, 2004 as well as Circular No.10 dated 28.12.04 issued vide F. No.S/6-81/2000-Admn, which requires the CHA to transact business of signing Customs related documents either personally or through an employee duly approved by Customs. The CHA has taken the position that they have done nothing contrary to the prevalent practice being followed at Air Cargo Complex, Mumbai where such declarations/checklists are being invariably signed by the Kanchan P Dhuri 2 / 4 942-CUAPP-2-2020.odt temporary pass holders. They have stated that they have terminated the services of Shri Vijay Dixit. However termination of the erring employee and the CHA taking cover under the plea that such signing of documents is a prevalent practice at ACC is not acceptable, and the same is also not legally permissible. Hence I hold that the CHA are responsible for lack of adherence to Regulation 19(8) of CHALR, 2004.
xxx xxx xxx xxx xxx xxx xxx"
4. Strangely in the earlier paragraph, COC records as under :
".....................
However it is expected or the CHA to properly scrutinize the documents and advice the exporter in connection to declaration of description, value and other particulars of the goods in the Shipping Bills which are filed by the CHA and observe due diligence in carrying out their work with efficiency and without avoidable delay. In this regard I observe that the Inquiry Officer after analysis of the charges has categorically concluded that there is no contravention of Regulation 13(d) & 13(n).
............................"
5. Therefore, there is a contradiction in as much as he first says that Inquiry Officer after analysis of the charges has concluded that there is no contravention of Regulations 13(d) and 13(n), but in the next paragraph, COC Kanchan P Dhuri 3 / 4 942-CUAPP-2-2020.odt states that there was lack of adherence to Regulation 19(8) of CHALR by the Respondent. Mr. Balani submitted that no show cause notice was issued to Respondent under the CHALR calling upon Respondent to show cause why they should not be held responsible for lack of adherence to Regulation 19(8) of CHALR. Mr. Deshmukh could not dispute this fact because if a show cause notice had been issued, it would have been annexed to the Appeal Memo file. Moreover, COC has not explained as to how termination of its temporary employee Mr. Vijay Dixit would amount to lack of adherence to Regulation 19(8) of CHALR by Respondent.
6. In the circumstances, we do not find any justifiable reason to interfere in the Order of Custom Excise Service Tax Appellate Tribunal. In our view, the Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that question as pressed raises any substantial question of law.
7. The appeal is devoid of merits and it is dismissed with no order as to costs.
( N.R. BORKAR, J. ) ( K.R. SHRIRAM, J. )
Digitally
signed by
KANCHAN
KANCHAN PRASHANT
PRASHANT DHURI
DHURI Date:
2022.04.21 Kanchan P Dhuri 4 / 4
10:39:20
+0530