Customs, Excise and Gold Tribunal - Tamil Nadu
M. Murali Babu, Proprietor And M/S Nanda ... vs Commissioner Of Customs, Chennai on 11 September, 2001
Equivalent citations: 2002(140)ELT184(TRI-CHENNAI)
ORDER
Shri S.L. Peeran
1. This appeal has been filed by the Custom House Agent against the order passed by the Commissioner of Customs in his adjudication proceedings under Regulation 23 of CHALR'84 by which he has ordered for forfeiture of Rs. 5,00/- of the security deposit made by the appellant CHA. The allegation in the show cause notice dated 28.11.95 issued by the Commissioner of Customs to the appellant proprietor of M/s. Nanda International was that he had contravened the various provisions of Regulation 14(a), (b), (k) and (l) in as much as that it was found on 27/10/95 that the person one Mr. M. Chandrasekar was running an unauthorized clearing agency in the name of M/s. Ohm Shipping at No. 103, Coral Merchant Street, Madras processing some bill of entries, which details are given in the show cause notice. It was admitted by Shri Murali Babu in his statement that he has lent his signature by signing the above said bill of entries to the unauthorised person. Shri M. Chandrasekar of M/s. Ohm Shipping, without verifying/knowing the importer.
2. In his statement dated 31.10.95, Shri M. Chandrasekar of Ohm Shipping has stated that he is not an authorized agent and he used to get the signature from the authorised CHA Shri M. Murali Babu, Proprietor and authorised signatory of M/s. Nanda International and clearing the consignments on equal profit sharing understanding. Further statements corroborated this fact and Mr. Chandrasekar was found in possession of all the bills of entry stated therein. Hence the charge. The Show Cause Notice also called upon the appellant to explain as to why CHA licence No. R. 159/CHA should not be revoked under Regulation 21 of the CHALR'84 and as to why the security deposit should not be forfeited.
3. The Commissioner directed for an inquiry and appointed the Asst. Commissioner of Customs to conduct an inquiry on the charges made. The AC filed a report confirming the allegation. Appellant had made out a case that his clerk Mr. T. Bhaskaran was carrying out the business and had handed over the documents to Mr. Chandrasekar to hold the same, so that he can go to the toilet. However, this plea has not been accepted, as it was an after-thought and there was an admission made by Shri M. Chandrasekar and Murali Babu at the first instance and Shri Murali Babu had admitted having received monitory benefits and he did not know the importer or the representative.
4. The Commissioner in the impugned order after giving the opportunity of hearing, has clearly noted that there was admission made by Mr. Chandrasekar that he was not connected with the CHA and he was in possession of said Bill of Entry. The theory/so called events of Mr. Bhaskaran's handing over documents to Mr. Chandrasekar was not accepted as it was a belated explanation after the proceedings commenced and there was clear admissions made by Chandrasekar and Murali Babu about the connivance of handing over the documents to Chandrasekar on monitory consideration. The Commissioner further took a view that the goods had it s origin in 1995 and is ore than a year and a half since the case was detected and set in motion and during this period the CHA was not disturbed in any manner in doing business. Therefore, he has taken a lenient view i.e. punitive action of forfeiting a sum of Rs. 5,000/- only from the security deposit made by CHA.
5. We have heard Ld. Consultant Shri M.S. Kumaraswamy for the appellants and Shri Jayachandran, Ld. DR for the Revenue.
6. Ld. Consultant reiterated his pleas as made by the CHA that Shri Baskharan had only handed over the papers to Chandrasekar to hold it till he attended to the call of nature. however, meanwhile Shri Chandrasekar had been arrested and statement was taken from him. Shri Murali Babu had also given a similar statement. The fact remained that there was no monitory transaction between these two person and Mr. Bhaskharan was a licenced clerk entrusted with the work of the appellant. he pointed out that there is no provision to forfeit the security deposit as same had not been charged in the SCN. He prayed for setting the order impugned.
7. Ld. DR took us through the show cause notice and clearly pointed out the allegations and the charge which had been clearly made out as to why the licence should not be revoked and why security deposit should not be forfeited for the violation of Regulation 14(a), (b), (k) and (l) has also been brought out. The AC was asked to inquire into his and his inquiry report is also on file which clearly implicated the appellant. Shri Bhaskharan's story was brought only in a much later stage which is mere an after-though and cannot be accepted in the light of admissions made by Chandrasekar and Murali Babu. He points out the Regulation 21 which clearly grants powers to the Commissioner to suspend or revoke the licence of CHA and also order for forfeiture of security deposit on the ground noted in Regulation 21 (1) (a) (b) and (c).
8. On a careful consideration of the submissions, and on perusal of the records we are satisfied that the there is clear admission made by both Chandrasekar & Murali Babu about their mutual arrangement in profit sharing of the business. They had been sharing the business and Murali Babu was getting the Commission from Chandrasekar. Shri Chandrasekar was not his authorised clerk but had a independent business in the name of M/s. Ohm Shipping without having any CHA licence. He was caught red handed while handling the bills of entry by putting his signature. Shri Murali Babu had lent his signature to sign the documents for receiving some monitory consideration. Therefore, the charge on the appellant is proved beyond doubt as held by the Commissioner. The inquiry report submitted by the AC also proves the charge. Later statement of Bhaskaran being authorized clerk of CHA and he having left the document in the hands of Shri Chandrasekar to attend the nature's call is nothing but an after-thought which was never the submission at the time of recording the statement from the two persons. The only point raised by the Consultant is that when he was not called to explain as to why the security deposit should not be forfeited under Regulation 21 therefore it does not empower the Commissioner to order for forfeiture of security deposit. We have perused the show cause notice and the Regulation 21 of CHALR'84. The show cause notice clearly called upon the appellant to explain as to why CHA licence should not be revoked and also why security deposit should not be forfeited. Ld. Consultant has not read the SCN before advancing the submissions as SCN and the report of AC clearly deals with all aspects of the matter. The Regulation 21 also empowers the Commissioner to suspend or revoke the licence of the CHA and also to order for forfeiture of Security Deposit on the grounds indicated therein. The ground with regard to the misconduct which on being proved, the order of (SIC) or revocation of the licence or order of forfeiture of security deposit can be made. There is no illegality or infirmity in the order. There is no merit in the appeal and same is rejected.
(Pronounced in Open Court on 11.9.01)