Custom, Excise & Service Tax Tribunal
M/S. Welcome Air Express Private ... vs Commissioner Of Customs(Airport & ... on 7 August, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
CUSTOMS APPEAL NO.C/A/286/2011
(ARISING OUT OF ORDER-IN-ORIGINAL NO.KOL/CUS/AIRPORT/ADMN/6/2011 DATED 05.08.2011 PASSED BY COMMISSIONER OF CUSTOMS (ADMN. & AIRPORT), KOLKATA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should 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 Departmental :
Authorities ?
M/S. WELCOME AIR EXPRESS PRIVATE LIMITED
APPELLANT (S)
VERSUS
COMMISSIONER OF CUSTOMS(AIRPORT & ADMINISTRATION), KOLKATA
...RESPONDENT (S)
APPEARANCE:
SHRI A.SEN,ADVOCATE FOR THE APPELLANT(S);
SHRI S.P.PAL, A.R.(APPRAISER) FOR THE REVENUE.
CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:07.08.2013 ORDER NO.A-247/KOL/13 Per Dr. I.P.Lal This is an Appeal filed against the Order-in-Original No. KOL/CUS/AIRPORT/ADMN/6/2011 dated 05.08.2011 passed by Commissioner of Customs (Administration & Airport), Kolkata, vide the impugned Order, the ld. Commissioner revoked the CHA license No.W-13(Pan No.AAACW4072H), issued to the appellant M/s.Welcome Air Express Pvt.Ltd. which rendered them unfit to transact CHA business in the Customs station.
2. The facts of the case arising for consideration in this case are as under:-
2.1 A seizure of 5415 Kgs. of Red Sanders valued approximately at Rs.21.66 lakh was made on 13.11.08 by the Officers of Directorate of Revenue Intellegence (DRI), Kolkata Zonal Unit, wherein the goods in question were attempted to be exported to Port Kelang, Malaysia through NS Dock, Kolkata, stuffed in Container No.BLJU2050020(20) said to contain iron sponge vide Shipping Bill No.5513131 dated 07.11.2008 in the name of M/s. Himalayan Tours and Travels, Siliguri.
2.2 The Appellant, i.e. M/s. Welcome Air Express Pvt. Ltd. were the CHA Firm in respect of this export cargo.
2.3 An investigation conducted by the officers of DRI revealed that the aforesaid CHA Firm had violated various provisions namely, Regulations 13(a), 13(b), 13(d) and 19(8) of the Customs House Agents Licensing Regulations, 2004 (CHALR, 2004), inasmuch as (i) they did not obtain an authorization from the exporter by whom they were employed as CHA; (ii) instead of transacting the business personally or through their employees, they allowed M/s.Draft Cargoways to use their license to clear the consignment on monetary consideration; (iii) did not advise their clients to follow the provisions of Customs Act, 1962 and (iv) failed to supervise over its employees, instead allowed processing of documents to employees of M/s.Draft Cargoways (India) Pvt.Ltd..
2.4 Shri Khursheed Hashim, Managing Director of the CHA firm in his statements admitted that (i) they had allowed the freight forwarder company namely, M/s. Draft Cargoways (India) Pvt. Ltd. to use their CHA license for the purpose of observing the Customs procedure on monetary consideration, (ii) they had employed the Jetty Sircar, namely Shri Mithun Ghosh, employee of M/s. Draft Cargo Ways for the clearance work at the Dock, (iii) they had authorized three employees of M/s.Draft Cargoways (India) Pvt.Ltd. for obtaining Jetty Sircar licence. The said employees used to process documents on behalf of CHA, (iv) They did not source clearing job from the exporter directly but from M/s. Draft Cargoways, without verifying the genuineness of the exporter and without obtaining any authorization from the said exporter.
2.5 Show cause notice dated 14.08.2009 was issued under Regulation 22(1) of CHALR, 2004 asking the CHA M/s.Welcome Air Express Pvt.Ltd. to show cause as to why the CHA licence held by them should not be revoked and its security deposit be forfeited under Regulation 20(1) of the said Regulation. They were requested to reply to the Inquiry Officer.
2.6 Inquiry officer vide his report dated 30.01.2010 held that out of the four charges, charge of violation of the provisions of Regulations 13(b), 13(d) and 19(8) of the CHALR, 2004, stood proved.
2.7 The case was, thereafter, adjudicated by the Commissioner of Customs(Administration and Airport). He held that M/s. Welcome Air Express Pvt. Ltd. had failed to discharge their responsibility/obligation cast on them under Regulations 13(b), 13(d) and 19(8) of the CHALR, 2004 and accordingly, revoked the CHA license and forfeited their Security Deposit. Hence, the Appellant are before us.
3. Ld. Advocate appearing for the Appellant submitted that the case against the Appellant had been made mainly on the basis of the statements of Shri Khursheed Hashim, Managing Director of the Appellant Firm before the Officers of DRI, Kolkata Zonal Unit. It is his contention that the statements were recorded in duress and using coercive methods.
3.1 As regards violation of Regulation 13(b) of CHLAIR, 2004, to the effect that, a CHA shall transact business at the Customs stations either personally or through an employee duly approved by the Deputy Commissioner/Assistant Commissioner(Customs), Appellant has submitted that they have adhered to their work as clearing agent and the forwarder to its work. Moreover there is no allegation that the appellant is in any way involved in mis-declaration, or export of sandel wood. It has been further submitted that they did not allow M/s.Draft Cargoways (India) Pvt.Ltd. to use their licence.
3.2 Regarding violation of Regulation 13(d) of CHLAIR, 2004, which requires that CHA shall advice its client to comply with provisions of the Act, it is the submission that the enquiry officer did not consider their reply to the show cause notice dated 17.09.2009 that the goods for export stuffed in container were brought on 11.11.2008 in the port premises under the lock and key by the transporter/exporter and handed over to the jetty Sircar of the CHA, who took the same inside for completing the necessary formalities by the Customs authorities. Thereafter being satisfied of the content of the said consignment, the Customs authorities sealed the container and passed the order of let export under Section 51 of the Customs Act, 1962. Therefore the question of verifying the genuineness of the export does not arise. Moreover the CHA verifies the genuineness of the exporter by checking the I.C. Code as issued to the authority. In addition the exporter has clearly stated in letter of authority given to CHA that the questioned goods are not contraband.
3.3 Regarding the charge that the Appellants violated Regulation 19(8) of CHLAIR inasmuch as they did not exercise adequate supervision over its employees and allowed employees of Draft Cargoways to process documents on behalf of CHA, it is stated that Shri Sirkar is the employee of the Appellants and handled the whole consignment. They have produced the licence No.TJSL/00104/07-08 clearly mentioning this.
3.4 The ld. Advocate submitted that similar charges had been leveled in another show cause notice dated 11.11.2009 issued by DRI against Shri Khursheed Hashim, Managing Director of the CHA, M/s.Welcome Air Express Pvt.Ltd. and others and the ld. Commissioner of Customs(Preventive) in his Order dated 05.01.2012 had, inter alia, been pleased to drop the proceedings against the noticees namely, M/s. Draft Cargoways (I) Pvt. Ltd., M/s. Welcome Air Express Pvt. Ltd. and Shri Khursheed Hashim(The Ld.Commissioner while deciding the case has recorded the various allegations against the Appellants under para 12 & 13 of his order dated 05.01.2012). However, the findings of the ld. Adjudicating Authority namely, Commissioner of Customs (Prev.), was not available to the Commissioner of Customs (Administration & Airport) who had revoked the license of M/s. Welcome Air Express Pvt. Ltd. in the impugned Order dated 05.08.2011 passed by him.
3.5 The ld. Advocate, therefore, states that the impugned Order dated 05.08.2011 revoking the license of M/s. Welcome Exports Pvt. Ltd. on the basis of identical charges as that of the charges leveled by the DRI Authority, cannot be held to be good when the Appellant are found to be not guilty of identical charges by the parallel quasi-judicial authority and that the impugned Order is likely to be set aside by meeting the ends of justice. In view of these facts, the ld. Advocate submitted that the case may be remitted back to the Commissioner of Customs (Administration and Airport) to re-consider the issues. Besides that, he also submitted that in view of the revocation of the license, the Appellant are not able to carry on their business as CHA and therefore, he requested that some time-limit should be framed, within which the Adjudicating Authority may decide the case.
4. Ld. AR appearing for the Revenue reiterates the findings of the Adjudicating Authority. He has submitted that M/s. Welcome Air Express Pvt. Ltd. in the enquiry proceeding conducted against them, were found to be guilty of violating various provisions of CHALR, 2004, and therefore, the license was revoked by the Adjudicating Authority. He however fairly conceded that the findings contained in the order dated 05.01.2012 were not available to the adjudicating authority while revoking the licence. Accordingly he consented to the request of the Ld.Advocate for remitting the case back for fresh decision.
5. Heard both sides and perused the records. We find that as per the allegations, M/s. Welcome Air Express Pvt. Ltd. has been found to violate certain provisions of the CHLAIR, 2004. The charges leveled against them were inquired into by the Inquiry Officers and on the basis of the Inquiry Report, charges made in the show cause notice dated 14.08.2009 and the submissions of the Appellants, the Adjudicating Authority came to the conclusion that the said CHA had failed to discharge their responsibilities/obligations cast on them under Regulations 13(b), 13(d) and 19(8) of the CHALR, 2004 and accordingly, revoked their license and forfeited the Security Deposit. We find that the ld. Advocate has made it a point that similar charges were leveled against the Appellant and the Commissioner of Customs (Preventive) vide his Order dated 05.01.2012 dropped all the charges. Since the findings in that Order was not available before the Commissioner of Customs (Administration and Airport) while revoking the licence, inasmuch as he had revoked the license, vide his Order dated 05.08.2011. In view of these facts, the ld. Advocate had requested to remit the case back to the Commissioner of Customs (Administration and Airport) to re-consider the issues. The ld. AR for the Revenue conceded that the matter may be remitted back to the Adjudicating Authority, as pointed out by the ld. Advocate. In view of these facts, the Order passed by the Commissioner (Administration and Airport) is set aside and the matter is remanded back to the Commissioner (Administration and Airport) to decide the case afresh. Needless to mention that a reasonable opportunity of hearing may be given to the Appellant before deciding the case. During the course of hearing, it has been pointed out by the ld. Advocate that the case is pending for a very long time. In view of the revocation of the license, the Appellant are not able to carry on their business as CHA and therefore, he requested that some time-limit should be framed within which the Adjudicating Authority should decide the case. Accordingly, the ld. Commissioner is directed to decide the case within three months of the receipt of this Order. The Appeal is thus allowed by way of remand.e has su (Operative part was pronounced in the court on 07.08.2013.) Sd/- Sd/-
(D.M.MISRA) (I.P.LAL)
JUDICIAL MEMBER TECHNICAL MEMBER
DUTTA/
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