Custom, Excise & Service Tax Tribunal
Krishna Shipping Agency vs Commissioner Of Customs (Airport & ... on 15 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. C/75275/2015
(Arising out of Order-in-Original No. KOL/CUS/AIRPORT/ADMN/02/2015 date 21/01/2015 Passed by the Commissioner of Customs (Airport & Administration), Kolkata
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL)
HONBLE SHRI P. K. CHOUDHARY MEMBER (JUDICIAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Krishna Shipping Agency.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs (Airport & Admn), Kolkata.
Respondent (s)
Appearance:
Shri Dr. Samir Chakraborty, Sr. Advocate Shri Abhijit Biswas, Advocate & Shri Arnab Chakraborty, Advocate of the Appellant (s) Shri K. C. Jena, ADC (AR) for the Respondent (s) CORAM:
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL) HONBLE SHRI P. K. CHOUDHARY MEMBER (JUDICIAL) Date of Hearing/Decision: 15.09.16 ORDER No.FO/A/76045/16 Per Shri H.K.Thakur This appeal has been filed by the appellant against OIO No. KOL/AIRPORT/ADMN/02/2015 dt 21/1/2015 passed by CC, Customs House, Strand Road, Kolkata as Adjudicating authority. Under this OIO dt 21/1/2015 Adjudicating authority has revoked license No. K-14 (PAN No. AAEFK8892 Q) of the appellant under Regulation 20(1) of Customs House Agents Licensing Regulations 2004 (CHALR) and also forfeited whole of the security deposit of the appellant.
2. Dr. Samir Chakraborty (Sr. Advocate), Sh. Abhijit Biswas (Advocate) and Sh. Arnab Chakraborty (Advocate) appeared for hearing for the appellants. Learned senior Advocate submitted that appellant M/s Prince International approached the appellant in 2010 for clearance of following goods containing shoes, batteries, wooden beads & strips for clearance through the Customs:-
Container No. Bill of Lading No w/date Invoice No. w/date Bill of Entry dated TGHU 62667220 SCCU 1010345 Dt. 20.01.2011 AST 090409 dt. 5.1.2011 N/A TGKU 6266799 SCCU 1010346 Dt. 20.01.2011 AST 090408 dt 5.1.2011 2842060 dt. 24.02.2011 OOLU 8132654 OOLU 2511144690 dt 2.2.2011 AST 0904010 dt 5.1.2011 2845686 dt 24.02.2011 That appellant prepared the bills of entry and acted in accordance with the provisions of CHALR. That the three containers were seized by DRI Kolkata Zonal Unit on 2/3/2011 and a show cause notice dt 30/8/2011 was issued by DRI to, interalia, appellant which is pending adjudication.
2.1. That during 2008 appellant was also approached by M/s Jai Shree Infotech to handle the exports of M/s Zone Power Private Limited Asansol. That the said consignment was to be received under ARE-I duly signed by the jurisdictional Central Excise officers and containers was sealed with seal No. COLLR 7 WB and the goods were declared as 20 photocopy machines. That on the basis of documents furnished by the exporter shipping bill No. 5959542 was filed. That before export clearance the sealed container was seized by DRI and on examination of the container instead of 20 photocopying machines Red Sanders Wood was found. That show cause notice dt 29/9/2011 was issued, interalia, to the appellant and a penalty of Rs. 10 lakh was imposed upon the appellant under OIO dt 8/8/2013 against which appellant appealed separately.
2.2. That by on Establishment order No. 260/2011 dated 16/9/2011 appellants CHA license was suspended by the Adjudicating authority which was subsequently revoked by the same authority as per order-in-original No. KOL/CUS/AIRPORT/ADMN/9/2011 dated 3/11/11 but in the same order it was ordered to initiate revocation proceedings against the appellant as per Regulation 20(1) & 22 of the CHALR That a DC Customs was appointed as an enquiry officer who vide his Inquiry Report dt 9/12/13 completely absolved the appellant. That thereafter by OIO No. KOL/CUS/AIRPORT/ADMN/06/2014 dated 23/4/14 by an exparte order Adjudicating authority revoked appellants license by disagreeing with the findings of Inquiry officer. That on 23/4/14 appellant moved W. P. No. 397 (W) of 2014 and by on order dt 15/4/2014 Honble Calcutta High Court set aside OIO dt 23/4/14. Adjudicating authority was directed to serve notice upon the appellant indicating points of difference from the Inquiry Report. That thereafter the points of difference were given & by final OIO dt 21/1/2015 appellant CHA license was again revoked against which the present appeal has been filed.
3. Learned Sr. Advocate of the appellant argued that antecedents of both the importer & exporter were duly verified & both the parties were found to be existing as investigated by the DRI. That in case of imports first check examination was requested. That in case of exports shipping bill was filed on the basis of documents received from the exporter & goods were received in a container duty examined & sealed by the jurisdictional Central Excise authorities. That appellant had no knowledge that sealed containers contained Red Sanders Wood and had taken sufficient precautions and verification, to know the identity of the exporter & the importer of Misc goods. That appellant is out of business since 2011 and no irregularly has been committed by the appellant for the period 2011 to till date.
4. Sh. K. C. Jena ADC (AR) appearing on behalf of the Revenue argued that appellant did not take sufficient steps as pointed out in letter dated 7/7/2014 giving the reasons on points of difference from the report of Inquiry officer. That Adjudicating authority under OIO dated 21/1/2015 has given detailed findings & held that appellant has violated Regulation- 13 (a), 13 (d) & 13 (o) of CHALR. That the said order dt 21/1/15 is well reasoned & correct. Learned AR strongly defended the order dt 21/1/15 passed by the Adjudicating authority.
5. Heard both sides & perused the case records. The issue involved in these proceedings is whether Adjudicating authority is justified in revoking the CHA license of the appellant under Regulation 20 (1) for not discharging the obligations under Regulation- 13 (a), (d) & (o) of CHALR. The said Regulation are reproduced below:-
REGULATION-13. Obligations of Customs House Agent.- A Customs House Agent shall-
(a) Obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as Customs House Agent and produce such authorization whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(d) Advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(o) Verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data of information.] 5.1. As per the above regulation appellant is required to verity the antecedents of his clients & suitably advice them. It is observed that at no stage appellant had the knowledge that there is any irregularity in the export/ import consignments. The goods imported were put to first check examination and the importer very well exists. Similarly the export consignment was received in a sealed container duly examined & certified by the jurisdictional Central Excise authorities. The exporter is also existing. Bills of entry & shipping bill were filed by the appellants based on the documents furnished by the importer / exporter. If there was any irregularity in the documents then the same was also available before the assessing officers and the Customs examining officer. If the same could not be detected by the appellant the same also could not be detected by departmental assessing/ examining officers. There is no evidence on record that appellant came to know of any irregularity before the same were detected by the department or that he did not advise the concerned clients. Appellant was also exonerated by the departmental inquiry officer. It is also observed that the points of difference from the Inquiry report are not so glaring to justify revocation of CHA license as held by the Adjudicating authority. The whole spirit of obligation of the CHA under the CHALR is to establish the indentify of the importer/exporter & appropriately advise his clients which in the present proceedings are existing and reasonable steps were taken by the appellant to comply with Regulation -13 (a), (d) & (o) of CHALR. Accordingly appeal filed by the appellant is allowed by setting aside OIO dated 21/1/15 passed by the Adjudicating authority.
(Operative part of the order was pronounced in the open court.) (P.K. CHOUDHARY) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER T.K 6 Appeal No.C/75275/2015