Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Customs vs Chhaganlal Mohanlal And Co. on 31 July, 2006
ORDER K.K. Agarwal, Member (T)
1. This is an appeal of revenue. The facts of the case are that M/s. Chhaganlai Mohanlal & Co. are holders of CHA licence who were transacting CHA business in Bombay. Some investigations revealed that one Shri Ashwin Shah was clearing the consignments for imports by using the licence of M/s. Chhaganlai Mohnalal & Co. for a monetary consideration of Rs. 200/- per documents since 1-4-93 and Shri Ashwin Shah was not holding any custom pass of M/s. Chhaganlai Mohnalal & Co. It was further found that two employees of M/s. Chhaganlai Mohnalal & Co. namely Shri Ajay M. Wadkar and Shri Gulab S. Choudhary were infact employees of Shri Ashwin Shah and were drawing salaries from him. In view of this the CHA was served with a memorandum wherein it was alleged that due to above acts of omission and commission, the CHA had contravened provisions of Regulations of 14(b) and 13 of the CHA Licensing Regulation, 1984 and asked to explain as to why action should not be initiated against him for the aforesaid misconduct. However, the proceedings against him was dropped by the Commissioner on the ground that in a similar case earlier Commissioner has held that soliciting or accepting business through an intermediary is not misconduct and the Customs House Agents (Licensing) Regulation do not prohibit the acceptance of business brought by a middleman and is silent or do not touch upon the manner in which the business is to be sought by the CHA.
2. The Revenue in its appeal has submitted that the memorandum served upon the CHA was very specific and records the violations of provisions of 14(b) and 13. Regulation 13 lays down the caveat that every licence granted under these regulations shall neither be sold nor otherwise transferred. While Regulation 14(b) makes it obligatory that all the business in the Custom House be carried by the CHA personally or through an employee duly approved by the Assistant Commissioner of Customs designated by the Commissioner. The CHA though signed the import documents allowed clearance work of the same in the Custom House through Shri Ashwin Shah who was not holding any custom pass on behalf of the CHA company. They also acquiesced in the handling of the work by the two employees of the Shri Ashwin Shah and presented as if the said employees were his employees. This presentation appears to be merely a concoction or some after-thought as otherwise how the two employees of one CHA could work for the other and also get paid. In view of this it was submitted that the Commissioner's order dropping the charge should be set aside.
3. Heard both sides.
4. We have considered the submissions. We find that the Revenue's contention that the same employees cannot work for the other is not based on evidence. Once the employees were claimed by the CHA to be his own employee and even if he was getting some business from Shri Ashwin Shah but carrying on the same in his own name through his own employees, the same cannot be objected to. We therefore find no merit in the appeal of the Department and accordingly reject the same.