Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 13 May, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Application No.C/S/314/11
Appeal No.C/81/11
Arising out of OIO No.KDL/COMMR/21/10-11, dt.11.01.11
Passed by: Commissioner of Customs (Appeals), Kandla
For approval and signature:
Honble Dr. P. Babu, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
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 Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s. Kunal Travels (Cargo)
Represented by Shri Paresh Sheth, Adv
Vs.
Respondent/s CC Kandla
Represented by Shri R.S. Sangia, SDR CORAM:
DR. P. BABU, MEMBER (TECHNICAL) Date of Hearing:13.05.11 Date of Decision:13.05.11 ORDER No. /WZB/AHD/2011 Per: Dr. P. Babu:
This is an appeal filed by M/s. Kunal Travels (Cargo), New Delhi against the order of the Commissioner of Customs, Kandla prohibiting them to work as Customs House Agent at Kandla and MP & SEZ under Regulation 21 of Custom House Agents Licensing Regulations, 2004 (CHALR). The circumstances leading to the prohibition are that M/s. Goralal Arya Impex (P) Ltd. filed shipping bills for export of rice through the CHA M/s. Kunal Travels (Cargo). The consignment of rice on examination and drawl of representative samples was found to be non basmati rice which is a prohibited commodity for export and the exports appeared to be in contravention of the Foreign Trade Policy 2009-2011. On account of this the consignments of Non-Basmati Rice of declared FOB value of Rs.1,75,31,440/- weighing 408 MT were seized. As per the facts of the case and various statements recorded, it was evident that Shri Bharat H. Umraniya, Manager of M/s. Kunal Travels (Cargo) was aware of the fraudulent export of non basmati rice in the guise of Indian basmati rice by M/s. Goralal Arya Impex (P) Ltd. The Revenues contention was that Shri Sunil Bhatia, Proprietor of M/s. Kunal Travels (Cargo) failed to check/consider the antecedents pertaining to the cargo of Shri Bharat H. Umraniya as required under the provisions of Regulation 19(2) of CHALR, 2004. On adjudication, the Commissioner prohibited M/s. Kunal Travels (Cargo) to work as Custom House Agent. He has found that the CHA firm had not fulfilled the obligations under Regulation 13D and Regulation 19 of CHALR, 2004. The omission and commission in the export amounts to misconduct as stipulated under the provisions of Regulation 20(1)(c) of CHALR.
2. It was argued by the appellant that the conclusion drawn by the Commissioner that the appellant has not fulfilled the obligations under Regulation 13D and 19 of CHALR is completely erroneous and false being unsubstantiated and unsupported by any reasons. There was nothing to say that the appellant had filed the shipping bills on behalf of exporter with a prior information, knowledge or understanding that they are exporting non basmati rice instead of basmati rice. There was no suppression by the appellants in as much as the containers were brought in CFS of all Cargo Global Logistic Limited, a Customs area, on 14.06.2010 under cover of Cargo Carting Forms (which were taken over by DRI from CFS) containing details of exporter, export invoice No., etc. and no irregularity in this regard is alleged or proved. It was also submitted by the appellants that Regulation 19(2) does not cast any burden to consider the antecedents and any other information pertaining to the person sought to be appointed, on the Custom House Agent. While arguing the case the learned advocate Shri Paresh Sheth, reiterating the contentions relied upon the order passed by the Delhi Bench of the Honble Tribunal i.e. C/101/11 dated 04.03.2011 in their own case on similar facts, wherein the Honble Tribunal has revoked the suspension citing procedural lapses.
3. Regulation 19 of the CHALR, 2004 reads as follows:
The Customs House Agent shall exercise such supervision as may be necessary to ensure the proper conduct of any such employees in the transaction of business as agents and be held responsible for all acts or omissions of his employees in regard to their employment. 3.1. It is very clear that the CHA should exercise such supervisions as necessary to ensure the proper conduct of such employees. The argument of the appellant that they are not responsible for the conduct or antecedents of the person sought to be appointed to act on behalf of the exporter is not acceptable. The appellants cannot be exonerated on this count.
4. The order of the Honble Delhi Tribunal in the case of M/s. Kunal Travels (Cargo) Vs. Commissioner of Customs, Kandla (C/101/11 dated 04.03.2011) relied upon by the appellant is not applicable in the present appeal. In fact the order of the Tribunal deals with the delay in issue of suspension order and the violation of the norms as prescribed by the Board. The order makes it very clear that the Tribunal was not passing any opinion on the culpability of the CHA.
5. Facts being so, I find that there are no merits in the appellants case. Accordingly the appeal is rejected. Stay petition is also disposed of in above terms.
(Pronounced in Court) (P. Babu) Member (Technical) jk 4