Customs, Excise and Gold Tribunal - Calcutta
Landing And Shipping Agency vs Commissioner Of Cus. (Admn.) on 19 September, 2003
Equivalent citations: 2003(158)ELT78(TRI-KOLKATA)
ORDER V.K. Agrawal, Member (T)
1. M/s. Landing and Shipping Agency has filed this appeal against revocation of their Customs House Agent Licence by the Commissioner under the impugned order No. Kol/Cus/Adm/01/ 2003, dated 3-1-2003.
2.1 Shri Sudhir Mehta ld. Advocate, submitted that the appellant is working as Customs House Agent since 1987 without any complaint; that the clearing job work is generally brought by the cargo handlers or on their recommendations; that Mr. Ujjal Goon of M/s. Shweta International, Cargo Handlers, recommended three exports namely, M/s. Akanksha Overseas, M/s. Himanshi Export and M/s. Chetan Impex (India) to the appellant; that all the three exporters duly executed signed and delivered G.R. Forms to the appellant; that as there is no format of authorization for appointment of Clearing Agent, G.R. Form is treated as authorization by the exporter; that on the basis of invoices, packing list and G.R. Form, the appellant filed shipping bills on 20-1-99 for export of ladies garments; that on examination of the goods, the Customs Officers found that goods were over-invoiced and there was misdeclaration in description of the goods; that though the appellant did not commit any misconduct as he does not have any occasion to look into the goods prior to its arrival, his licence was suspended which, however, was recalled in terms of the Order passed by the High Court of Calcutta.
2.2 He, further, mentioned that after conducting an enquiry in which cross examination was not allowed, the Enquiry Officer submitted an Enquiry Report; that the Commissioner has revoked his CHA Licence on the ground that he had acted without proper authorization from the exporters and had allowed unauthorised persons to handle export documents.
3.1 The ld. Advocate submitted that the appellant did not have any knowledge about the misdeclaration of value and misdescription of goods; that this fact has been stated in the Enquiry Report as under :
"But on verification of the relied documents on record and on further enquiry it can only be said that the CHA has abetted the violation of the Customs Act in the instant case by lending their names to unauthorised person for dealing with the Customs documents. "But their connivance with the exporter actively for manipulation of export consignment is not proved beyond doubt."
3.2 He, further, mentioned that in the case of M/s. Akanksha Overseas, Commissioner had imposed penalty on the appellant as well as M/s. Shweta International and Shri Ujjal Goon and the exporters under the Customs Act in a separate proceedings; that the Appellate Tribunal vide Order No. A-814-818/KOL/2001, dated 5-9-2001 had set aside the penalties on the appellant and its proprietor, Shri Ashis Kumar Mukherjee, accepting their plea that mere fact that they procured the business of M/s. Jha Shipping Agency did not establish their involvement in the misdeclaration of the goods and their value. He, therefore, contended that after the said Final Order of the Tribunal, it was not open to the Commissioner to rely on the conduct of Shri Ujjal Goon and M/s. Shweta International and the appellant in connection with the export and to hold the same as bad. He also mentioned that he had not allowed any handling of the paper work by any outside agency as the entire paper work was done by the appellant himself; that he had signed and filed the Shipping Bill, he was present at the time of inspection and examination of goods; that all the three employees, S/Shri S.K. Maity, G.K. Ghosh and D.K. Sarkar, were duly authorised Customs Sarkar holding authorization issued by Customs Authorities as Sarkar of the appellant. The ld. Advocate relied upon the decision in the case of Falcon Air Cargo & Travel (P) Ltd. v. Commissioner of Customs, New Delhi - 2002 (141) E.L.T. 284 (Tri.-Del.) wherein it has been observed by the Tribunal that the proportionately question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death; that revocation of licence is a grave punishment as it deprives permanently a person of the means of livelihood. Reliance has also been placed on the decision in the case of P.P. Dutta v. CC, New Delhi [2001 (136) E.L.T. 1042 (Tri. - Del.) = 2001 (47) RLT 189 (CEGAT-Del.)].
4. Countering the arguments, Shri N.K. Mishra, ld. D.R., submitted that the shipping bills filed by the appellant on behalf of the exporters at Delhi were declared to be ladies garments valued at Rs. 2,90,81,305/- whereas on examination these were found to be old and torn rags valued at Rs. 32,851/- only; that one Sanjib Jha of M/s. Jha Shipping Agency and Ujjal Goon were actively involved in processing/clearance of the impugned goods and they were also present at the time of examination but disappeared soon after examination was over; that Sanjib Jha could not himself file the shipping bills since his CHA licence had been suspended; that it has been admitted by the appellant in his statement dated 1-2-1999 that he had simply signed the shipping bills by taking Rs. 500/-per shipping bills which we brought to him by Ujjal Goon; that he had also admitted that his employee, Shri S. Maity, was drawing salary from Mr. Goon; that the Pay Roll Register of Shweta International clearly showed the names of all the three employees of the appellant. The Ld. DR also emphasised that the appellant had undertaken the clearing job without proper authorization from the exporters; that as per Regulation 14(a) of the Customs House Agents Licencing Regulations, 1984, a CHA shall obtain an authorization from each of the Companies, firms or individuals by whom he is being employed as CHA; that Regulation 14(b) requires that he shall transact the business either personally or through an employee duly approved by the Assistant/Deputy Commissioner; that Regulation 14(1) requires that CHA shall ensure that all documents presented by him are strictly in accordance with orders relating thereto; that the appellant has contravened all these three regulations by signing the Customs documents without having proper authorization from the exporters and by allowing to transact business in Customs station by others and by not ensuring that the documents were in accordance with the orders relating thereto; that the appellant was merely a name lender to Sanjib Jha and Ujjal Goon who were not authorised to handle export documents. He finally submitted that the proceedings initiated under Section 114 of the Customs Act for imposition of penalty are entirely different from the proceedings initiated under the Customs House Agents Licensing Regulations Act, 1984 for revocation of licence; that setting aside of penalty imposed under Section 114 of the Customs Act by the Tribunal cannot be a ground for not taking the action under these Regulations, 1984; that Regulation 21 of the Customs House Agents Licencing Regulation empowers the Commissioner to revoke the licence for failure of the Customs House Agent to comply with any of the provisions of Regulations.
5. We have considered the submissions of both the sides. We observe that the shipping bills in question were signed by the appellant as Customs House Agent. This fact has not been disputed by the Revenue. It is also an undisputed fact that the appellant as a Customs House Agent was present at the time of examination of the consignment brought for export out of the country. The appellant has also brought on record the identity cards which had been issued to Shri Sukhendu Maity. Shri Dilip Kumar Sarkar and Shri Govinda Kishore Ghosh by the Competent Customs authority as employees of the appellant. Except the fact that the names of these three persons were found on the pay roll of M/s. Shewta International, there is no other material to show that they were not working for the appellant. In view of this, it cannot be alleged by the Revenue that the provisions of Regulation 14(b) of the Customs House Agent Licencing Regulation has been contravened by the appellant. The Enquiry Officer has also given his specific findings that the connivence of the appellant with the exporter for manipulation of export consignment is not proved beyond doubt. In view of such findings, it cannot be said that the appellant was aware of the factum of mis-declaration of the goods as well as over-valuation of the goods in question. Another charge against the appellant is that they have undertaken the work of Customs Agent in respect of impugned consignment without any authorization from the exporters. The contention of the appellant is that G.R. Forms were duly signed by the exporters which are generally regarded as sufficient authorization by the exporters for the purposes of Regulation 14(a). Ld. Advocate has relied upon the decision in the case of P.P. Dutta (supra) wherein it has been held that once the signature of the importers/exporters are appended on the Bill of Entry/Shipping Bills, it should be taken to be substantive compliance of the provisions of Regulation 14(a) of CHALR. Moreover, it is also to be considered whether the violation of the said Regulation 14(a) will warrant the revocation of the appellant's CHA licence. The Tribunal in the case of Falcon Air Cargo & Travel (P) Ltd; (supra) case, has relied upon the Hon'ble Delhi High Court's decision wherein the Hon'ble High Court has expressed the views that when revocation is directed, it has to be only in cases where infraction is of a very serious nature warranting exemplary action on the part of the authorities. The Hon'ble High Court also observed that the authorities while dealing with the consequence of any action which may give rise to action for revocation has to keep several aspects in mind." It has also to be borne in mind that the proportionality question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death". Taking into consideration all the aspects of the matter, we are of the view that the punishment of revocation of licencing is not commensurate with the actions of the appellant in the present matter. It is not fit case warranting revocation of CHA licence under Regulation 21 of CHALR as the charges are not so grave that the severe punishment of revocation is awarded to the appellant and depriving him of his means of livelihood. We, therefore, set aside the impugned order and allow the appeal.