Customs, Excise and Gold Tribunal - Mumbai
Frontier Shipping Agencies Pvt. Ltd. vs Commissioner Of Customs on 18 March, 2005
Equivalent citations: 2005(185)ELT81(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. The appellants are Custom House Licensed Agent (hereinafter referred to as CHA). Vide impugned order, the Commissioner, under Regulation 21 of the Custom House Agents Licensing Regulations, 2004 prohibited the CHA from doing the Customs clearance work at all Zones of Mumbai Customs Commissionerate pending inquiry under Regulation 22 of the Regulations. This order is dated 9.2.2005.
2. It appears that on 17.11.2004 a flight landed at 5 p.m. at Sahar and certain animals including 4 sea lions, 13 dogs and 7 cats as well as other circus equipments were unloaded at about 7 p.m. kept on tarmac, near the aeroplane. Since the importer and the CHA could not arrange the presence of Animal Quarantine Officer for inspection of the animals and issuance of necessary certificate as per examination ordered dated 17.11.2004 given on the manual Bill of Entry by Group Appraiser and the NOC from the Animal Quarantine Officer could be produced only around 4 a.m. on 18.11.2004, a charge has been arrived at that the NOC from the Animal Quarantine Officer could not be produced and the CHA could not take delivery of animals when NOC as well as that invoice submitted in Group IIB of the Air Cargo Complex by CHA declared the value of each sea lion as US$ 500, whereas Managing Director of M/s Choice & Events Pvt Ltd, the importer, in his statement dated 30.11.2004 recorded that the cost of each sea lion was US$ 5000/- and that they had handed over the invoice showing correct value of sea lion as US$ 5000 to the CHA and the importer in collusion with CHA deliberately misdeclared the value of each sea lion as US$ 500 at the time of import and only after being interrogated the value of each sea lion was found and accepted as US$ 5000/-. Therefore, the CHA appears to have acted in collusion with the importer in evasion of duty of Rs 3,08,950/-. A Show Cause Notice was issued and a penalty of Rs 50000/- on the CHA under Section 112 (a) of the Customs Act, 1962 imposed on these acts including the findings that "within 48 hours, as per the undertaking given by them on behalf of the said importer, about the non compliance of the provisions of the Customs act, 1962 read with Foreign Trade Policy for the year 2005, i.e. non submission of DGFT licences for sea lions, cats and dogs, thereby violating Regulation 13 (d) of CHALR 2004."
This conduct is also held to result in the CHA not discharging the duties promptly and efficiently inasmuch as he did not inform the Customs authorities within 48 hours of clearing the consignment, about non compliance with Customs formalities such as DGFT licences for sea lions, cats and dogs, and there was violation of Regulation 13 (n) of CHALR 2004 to call for the Prohibition order under Regulation 21 of CHALR 2004 by order dated 9.2.2005.
3. After hearing both sides, and considering the issues involved, it is apparent that the Prohibition order has been issued in February 2005 for an act alleged to have been committed on 17.11.2004. There is no material on record to bring out what was the immediate cause for action to initiate the Prohibition order under Regulation 21 to stop the CHA from acting on other consignments by him and his employees in the entire Customs Zone in and around Mumbai. The Prohibition ordered and action under Regulation 21 pnding full and final enquiry under Regulation 23 cannot arrived without an adequate and sufficient cause. Such cause should be grave and immediate provocation for the Commissioner to have reasons to prohibit not only the livelihood of the CHA employees but also of the CHA firm functioning in other areas, where there is no allegation of misconduct on the part of the CHA. The continuation of the CHA licence in conducting his business would not be in the interest of the Customs and his preswence would cause damage to the enquiry and or evidence. Since the CHA has been penalised, order dated 1.1.2005 under the Customs act, 1962 for the very same act, there is no reason why this Prohibition order, which amounts to suspension of the work of the CHA in totality should be made on 9.2.2005
4. The action taken under Regulation 21 is to have a nexus in fact and in time with an act, which may be contumacious, to call for a drastic penalty under Regulation 21. No such material is forthcoming. In fact, after perusal of the Standing Order No. V/97 dated 18.9.1997 at Air cargo Complex, it is found that there is no violation of the said standing order on part of the CHA, even if all the aspects found against the CHA were & are found to be upheld; inasmuch as within 48 hours the CHA has produced the invoice for the said import and also the animal Quarantine Officer's certificate and other documents which the officers have relied upon and cleared the consignment. The CHA cannot be held responsible for misdeclaration of the value of the goods. When invoice given of US$ 500 to him, he has to declare US$ 500 to the Customs.
5. We find in the facts of this case, there is no material to uphold the Prohibition orders issued by the Commissioner. The same are required to be set aside. While ordering the setting aside of the Prohibition order, we make it clear that we are not passing any orders as regards the Customs Commissioners inquiry ordered under Regulation 23 of the Regulations. The same should be pursued to its logical ends.
6. Appeal disposed of in above terms.