Customs, Excise and Gold Tribunal - Delhi
Shiva International vs Commissioner Of Customs on 4 December, 2000
Equivalent citations: 2001(129)ELT91(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. In the impugned order, the Commissioner held as under :
"The CHAs are granted licence under the Customs House Agents Licensing Regulations, 1984 and the licence is not transferable under any circumstances. The H-Card issued to Shri Ajaya Kumar Mathur did not make him competent to file Bill of entry/Shipping Bill or other documents. He was also not authorised as a H-Card holder sign any such documents.
It is not known as to whether Shri Deepak Arora was permitting his H-Card holder employee to function in a manner not contemplated under CHALR'84, but even if it was done without the CHA's knowledge, it shows that there was a lack of supervision and proper control on the part of the CHA.
I do not agree that although the licence was suspended in 1993, the two Inquiry Officers did not submit any Inquiry Report and the matter has dragged on for about seven years, causing hardship to the CHA. While I do not hold any brief for the Department for the delay in finalising the case and the consequent loss of business and tension for the CHA, at the same time the gravity of the offence cannot be minimised as the charge of misdeclaration has also been made against the CHA. It is the duty of the CHA to exercise proper control over his employees.
I therefore revoke the licence under Regulation 21 of Customs House Agents Licensing Regulations, 1984."
2. Arguing the case for the appellants, Shri G.L. Rawal, ld. Advocate submits that the appellant was a Customs House Agent which was valid upto 18-6-1994. He submits that on 18-2-1993 a bill of entry was filed on behalf of the importer M/s. Sat Electronics for clearance of imported goods. The goods were found misdeclared and, therefore the goods seized. The import was alleged to be forged one. He submits that the appellant had hardly any role to play and that mischief was created by S/Shri Ajay Kumar Mathur and Sanjay Mathur. He submits that Shri Sanjay Mathur is brother of Shri Ajay Kumar Mathur; that Shri Sanjay Mathur was working with him as an employee; that the licence of the appellant was suspended on 20-5-1993 for contravention of the provisions of Regulations 13,14(a), (b), (d), (e), (f) (1). Ld. Counsel submits that a Inquiry Officer was appointed by the department who concluded that "The CHA has not been proved to have contravened Regulations 13,14(a), (d), (e), (f) and (1) of CHALR, 1984. However, CHA has been negligent in conducting his business through his representatives and has not seriously complied with Regulation 14(b) of CHALR, 1984. The quantum of punishment in this regard is left to adjudicating authority. Other factors viz. loss of business, suspension of licence for seven years and that CHA has suffered a lot and learnt his lesson the hard way, may be taken note of while deciding the quantum of punishment." Ld. Counsel submits that the Commissioner in her order observed that it shows that there was lack of supervision and proper control on the part of the CHA. Ld. Counsel submits that this finding is contrary to the observations made by the Inquiry Officer. He submits that the Inquiry Officer concluded that there was contravention of Regulation 14(b). He submits that Regulation 14(b) stipulated that CHA shall transact the business through authorised representative. He submits that the finding of the Commissioner is about lack of supervision and proper control which is not contravention and which is not contravention of Regulation 14(b) of the CHALR, 1984. He submits that the appellant had already suffered on account of long time taken in deciding the issue. He submits that it has taken seven years for the department to come to its decision. He submits that the cancellation of the licence is deprival of a person of his livelihood. He submits that looking to the inquiry report as also the final order passed by the Commissioner, there is no case made out against the appellant. He, therefore, prays that the appeal may be allowed by setting aside the impugned order.
3. Shri Mewa Singh, ld. SDR submits that in this case the goods were misdeclared and the entire mischief for misdeclaration of the goods and forging of the documents was committed by the employee of the appellant. He submits that though the appellant took a plea that he had removed the employee who committed mischief from his service. He however, did not exercise proper control over his employee. He submits that it was a serious matter of leaving the entire question of preparing bill of entry and submitting it to the authorities for assessment. He, therefore, submits that a case has been made out for lack of supervision. Ld. SDR submits that it was a serious lapse of the appellant and, therefore, prays that the appeal may be rejected.
4. Heard the rival submissions. We have also perused the evidence on records. We have considered carefully the submissions made by the Counsel in regard to the finding of the Inquiry Officer as also the conclusion of the adjudicating authority. Ld. Counsel during his argument had referred to the case decided by this Tribunal in the case of Interport Impex (P) Limited [1999 (107) E.L.T. 36]. In that case, this Tribunal had held that "It may be, that the firm did not exercise its supervision and control over its employees specified in Sub-regulation (7) of Regulation 20. This however, is not sufficient to suspend the licence in the manner, in which it has been done. The provisions of Sub-regulation (2) of Regulation 21 should be resorted to when it is necessary to immediately stop the functioning of Customs House Agent in order to safeguard the interest cf the Customs House. The principles of natural justice provided for in Sub-regulation (3) of Regulation 20 can thus be dispensed with. The existence of such situation has not been shown. The activities of Dinesh Yadav, came to the notice of the Customs House in October, 1998. The fact of dismissal of the employee by the appellant has also been communicated to the Custom House in December, 1998. In the absence of any material, whatsover, to show either the involvement of any of the Director or even any other employee of the appellant in the involvement of the fraud stated to have been committed, invoking the provisions of Regulation 21(2) not justified." We note that this order is on suspension of the licence but we find that Sub-regulation (7) of Regulation 20 is the regulation in the instant case on the basis of which the licence has been cancelled. We find that the appellant was never put to notice of the contravention of Sub-regulation (7) of Regulation 20. We further note that in the instant case no evidence has been brought on record to show that the Directors of the CHAs were involved in the misde-claration and fraud. We also note that the licence of the CHA was suspended about seven years back. We find that this is sufficient time to penalise the CHA for negligence of control over his employees. Looking to all the facts and circumstances of the case, we find that no case for revokation of the licence of the appellant existed. In the circumstances, we allow the appeal.