Custom, Excise & Service Tax Tribunal
M/S Delta Logistics vs Commissioner Of Central Excise on 2 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/89377/13 (Arising out of Order-in-Original. CAO No. 96/CAC/CC (G)/PKA dated 29.08.2013 passed by the Commissioner of Customs (General), NCH, Mumbai) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.K.Jain, Member (Technical) ========================================
1. Whether Press Reporters may be allowed to see :
the 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 the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
========================================
M/s Delta Logistics
:
Appellant
VS
Commissioner of Central Excise,
NCH, Mumbai
:
Respondent
Appearance
Shri Vinay Ansurkar, Advocate for Appellant
Shri M.S. Reddy, Dy. Commissioner (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.K.Jain, Member (Technical)
Date of Hearing: 02.07.2014
Date of Decision:02.07.2014
ORDER NO.
Per : Ashok Jindal
Appellant is in appeal against the impugned order dated 29.04.2013 revoking their CHA Licence No.11/427.
2. Brief facts of the case are that on an intelligence report dated 18.12.2008 received from Directorate of Revenue Intelligence, charges were alleged against the appellant that they had failed in discharging their obligations under Regulations 12 and 13(b) of CHALR, 2004. The statement of the appellant recorded by the DRI shows that the appellant was subletting their CHA licence to various 27 persons on commission basis. Proceedings were initiated against the appellant for sub-letting their CHA licence without any authority of law. On receipt of the enquiry report from DRI, the CHA licence was suspended initially on 22.12.2008 and Charges were framed against the appellant for alleged violation of Regulation 12, 13(b) and 13(d) & 13(e) of the CHALR 2004. The Inquiry Officer conducted an inquiry and submitted his report on 23.12.2010 holding all the charges alleged against the appellant stands not proved. Thereafter, on 07.09.2012 a disagreement memo was issued by the learned Commissioner of Customs (General) holding that as the appellant has sub-let their CHA licence for money consideration therefore, he is not in agreement with the Inquiry Report and proceedings were initiated against the appellant. The appellant was given an opportunity of being heard by the CC (General) and passed an order dated 18.10.2012 revoking the CHA license of the appellant and the security deposit has also been forfeited. Aggrieved by the said order, the appellant is before us.
3. Heard both sides.
4. The learned Counsel for the appellant submits that the statement recorded by the Directorate of Revenue Intelligence on 16.1.2008 has been retracted by the appellant before the DRI Head Office at New Delhi. He further submits that out of 27 persons, who allegedly used the license of the appellant, statement of 26 persons have never been recorded and the statement of Mr. Mohd. Illiyas Peerzada recorded by the DRI is remained unsigned by the officer of the DRI. Therefore, the statement cannot be relied upon against the appellant. He further submits that all these 27 persons are marketing agents appointed by the appellant to procure business to the appellant during the period and their names were entered in Import Register showing that the persons from whom he got the business. He further submits that their CHA Section report has been called for wherein they have mentioned the name of 10 persons out of those 27 persons as their employees and are getting salaries from the appellant. Therefore, the charge against the appellant that they have sub-let their CHA licence is not proved as there is no evidence has been brought by the Revenue on record that they have sublet the licence. In these circumstances, the learned Advocate prays that the charge of sub-letting stands not proved.
4.1 With regard to Charge under Regulation 13(b), the Revenue has failed to brought any evidence that these 27 persons were not employees and have not dealt with any consignment in clearance. Therefore, the Charge stands not proved.
4.2 Learned Advocate further submits that there are four imports against whom proceedings under Customs Act were initiated. In case of two imports, there was no show-cause notice issued to the appellant and in one case the charge against the appellant has also been dropped. In one proceeding, the proceedings have not been concluded at the end of the adjudicating authority. In these circumstances, he prays that the impugned order lacks merit and hence the same is required be set aside.
5. On the other hand, the learned A.R. strongly opposes the contentions of the learned Advocate and submits that in this case the statement has been retracted by the appellant before the DRI, New Delhi office. But, in this case, the statement was recorded by the DRI, Mumbai office and if the appellant wanted to retract the statement, they would have retracted the same before the same Officer of Mumbai Unit who has recorded the first statement. Therefore, retraction before the DRI, New Delhi does not make any defence to rely on. The learned A.R. further submitted that the statement of the appellant itself shows that they were receiving commission from these 27 persons for using the appellants CHA licence. Therefore, nothing is required to prove against the appellant that the appellant has sub-let the licence. Therefore, the learned Commissioner has rightly revoked the CHA licence.
6. Considered the submissions made by both the sides.
7. In this case the impugned charges against the appellant are that they have sublet the CHA licence and the persons to whom they sub-let the licence were doing the business of clearance on behalf of the appellant. Although in the statement recorded by DRI, the appellant has admitted that they have given the CHA licence to these persons to use on certain consideration but during the course of enquiry these persons were never called for interrogation or for cross-examination. With regard to the statement of the appellant, the persons who were involved in the activity no other evidence is brought on record therefore, the charge is not proved. We further observed that the statement of Shri M.I. Peerzada recorded by the DRI is unsigned by any of DRI officer. Therefore, the statement cannot be relied upon. We further observed that in the proceedings under Customs Act, out of four cases, in three cases, no involvement of the appellant has been held by the adjudicating authority and in one case adjudication is still pending. In these circumstances, without any other evidence on record that the appellant has sub-let their CHA licence to these 27 persons cannot be proved. Therefore, we held that the Charge under Regulation 12 stands not proved.
7.1 With regard to Regulation 13(b) we find that no documents are available on record that these 27 persons have dealt with in clearance of imported goods in the name of the appellant. Therefore, we held that the Charge under Regulation 13(b) also stands not proved.
7.2 As charges under Regulations 13(d) and (e) are consequential to Charges under Regulations 12 and 13(b) therefore, the Charges under Regulations 13(d) and (e) are also stands not proved. As all the charges are stands not proved therefore, we set aside the impugned order revoking the CHA licence No. 11/427 and forfeiture of security deposit with immediate effect.
8. The appeal is allowed with consequential relief, if any.
(Order dictated in Court) (P.K.Jain) Member (Technical) (Ashok Jindal) Member (Judicial) nsk ??
??
??
??
6