Custom, Excise & Service Tax Tribunal
Asian Freight Forwarders vs Mumbai on 30 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/88802/2013
[Arising out of Order-in-Original No: 105/2013(CAC/CC(G)/PKA-CHA(Admn.) dated 29/08/2013 passed by the Commissioner of Customs (General), Mumbai.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
Yes
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Asian Freight Forwarders
Appellant
Vs
Commissioner of Customs (General)
Mumbai
Respondent
Appearance:
Shri B.R. Tripathi, Advocate for the appellant Shri M.S. Reddy, Dy. Commissioner (AR) for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 30/01/2014 Date of decision: 30/01/2014 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
The appeal is directed against Order-in-Original No: 105/2013 (CAC/CC(G)/PKA-CHA(Admn.) dated 29/08/2013 passed by the Commissioner of Customs (General), New Custom House, Mumbai.
2. Vide the impugned order the learned adjudicating authority has revoked the CHA licence of the appellant M/s. Asian Freight Forwarders in exercise of the powers conferred under Regulation 22(7) and 20(1) of CHALR, 2004 read with Regulation 20(7) and 18 of the CHALR 2013 and also ordered forfeiture of the entire amount of security deposit made by the appellant. The Commissioner held that the charges imputed against the CHA stood proved and, therefore, the revocation is justified. Aggrieved of the same the appellant is before us.
3. The learned counsel for the appellant submits that even though in the enquiry officers report, the charges have been held to be proved they do not agree with these findings. It is his contention that the appellant had taken sufficient precaution while exercising the responsibility of a CHA and, therefore, it cannot be said that the appellant contravened the provisions of CHALR as mentioned in the Articles of Charge.
3.1. The alternative contention is that the punishment of revocation meted out to the appellant is harsh when compared to the contravention alleged to have been made by the CHA. He also relies on the decision of the honble apex Court in the case Rinku Shipping Agency, in Customs Appeal No. 11/2009 decided on 23/03/2009. Accordingly, he pleads that the revocation be set aside.
4. The learned Dy. Commissioner (AR) appearing for the Revenue, on the other submits that the appellant had admitted to all the charges made against him in the Articles of Charge during the enquiry proceedings. Shri Rajesh Kotian, partner of the appellant- CHA appeared in person and the charges were read out and he admitted to all the charges imputed against the CHA. Since the charges have been admitted, there is no further evidence required to prove the contraventions made by the appellant. He relies on the decision of the honble High Court of Bombay in the case of Commissioner of Customs (General) vs. Worldwide Cargo Movers 2010 (253) ELT 190 (Bom.) and the decision of the honble High Court of Andhra Pradesh in the case of Commissioner of Customs & Central Excise, Hyderabad II vs. H.B. Cargo Services 2011 (268) ELT 448 (AP) in support of his above contention, where in similar situations revocation of the CHA licence was upheld. He therefore, pleads that the impugned order is sustainable in law and therefore, the same be upheld.
5. We have carefully considered the submissions made by both the sides.
5.1. We have also perused the charges impugned against the appellant. The first charge is that the appellant did not obtain authorisation from the importer before effecting clearance of the cargo thereby contravening the provisions of sub-regulation (a) of Regulation 13; the next charge is that the appellant failed to advise his client to comply with the provisions of Customs Act, thereby contravening sub-regulation (d) of Regulation 13; the third charge is that the appellant as a CHA failed to discharge duties as a Custom House Agent with utmost speed and efficiency and without any avoidable delay thereby contravening sub-regulation (n) of Regulation 13; and the fourth charge is that the appellant did not verify antecedents, correctness of Importer Exporter Code (IEC) Number and identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information, thereby contravening sub-regulation (o) of Regulation 13.
5.2. During the enquiry held on 13/06/2013, Shri Rajesh Kotian, partner of the appellant-firm was present and the charges were read out to him. Shri Rajesh Kotian admitted to all the charges imputed against his firm. Thus, from the records of the case it is seen that the charges stood admitted. It is a settled position in law that admitted charges need not be proved. In view of the above we do not accept the contention of the appellant that they had not contravened the provisions of CHALR, 2004/CHALR 2013. As regards the reliance placed by the appellant in the case of Rinku Shipping Agency (supra) the matter referred to honble High Court of Bombay was whether the Tribunal had the power to modify the order passed by the adjudicating authority imposing penalty by revocation of the CHA licence. The honble High Court, in the context of that case, held that there was no substantial question law involved in the appeal and accordingly the appeal was dismissed. Those are not the facts obtaining before us in the present case. Therefore, the reliance placed by the appellant on the said decision has no relevance to the facts of the present case.
5.3. The Honble High Court of Bombay in the case of Worldwide Cargo Movers (supra) considered a question whether contravention of Regulation 13(d), (e), (l) and (n) of the CHALR 2004 would attract the punishment of revocation of CHA licence. The subject matter was considered by the Tribunal and the Tribunal set aside the revocation and in appeal the matter was considered by the honble High Court and the honble High Court held as follows:
In a departmental proceeding one has to see whether the principles of natural justice are followed and the findings are justified from material on record. Once both these aspects are satisfied if an outsider Tribunal interferes, its findings and order will be improper and perverse which is what has happened in the present case. Similarly when one comes to the disciplinary measures, one must not lose sight of the fact that the appellant-Commissioner of Customs is responsible for happenings in the Customs area and for the discipline to be maintained over there. If he takes a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or his employees. 5.4. The same view was taken by the honble High Court of Andhra Pradesh in the H.B. Cargo Services (supra). In the present case also the contraventions are of sub-regulations (a), (d), (n) and (o) of Regulation 13 which is more or less the same as obtaining in Worldwide Cargo Movers cited supra. The ratio of the said decision, therefore, would apply squarely to the facts of the present case.
6. Thus, we do not find any merit in this appeal and accordingly dismiss the same.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 7