WELCOME AIR EXPRESS P. LTD. Vs. C.C. (ADMN. AND AIRPORT)
LAWS(CE)-2015-5-52
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on May 25,2015

Welcome Air Express P. Ltd. Appellant
VERSUS
C.C. (Admn. And Airport) Respondents




JUDGEMENT

I.P.LAL, J. - (1.)Heard both sides and perused the records. The instant appeal is filed against the order dated 19 -12 -2013 passed by the Commissioner of Customs (Admn. & Airport), Kolkata, wherein the CHA Licence No. W -13 (PAN No. AAACW4072H) of the applicant, namely, M/s. Welcome Air Express Pvt. Ltd., has been revoked and the full amount of security deposit of the said applicant, is forfeited.
(2.)1 Briefly stated the facts of the case are that on 13 -11 -2008, the Officer of DRI, Kolkata, made seizure of 5415 kgs. of Red Sanders valued at Rs. 21,66,000/ - (approx.); the prohibited items attempted to be exported outside India through N.S. Dock, Kolkata, stuffed in Container No. BLJU2050020 (20') said to contain iron sponge. It was found that the Shipping Bill No. 5513131, dated 7 -11 -2008 in the name of Himalayan Tours & Travels, Siliguri. Covering the said consignment was filed by the impugned, CHA.
2.2 From the investigation conducted, it appeared that the CHA filed the said Shipping Bill by violating the various provisions of Customs House Agents Licensing Regulations, 2004 (CHALR). Accordingly, a show cause notice dated 14 -8 -2009 was issued to the CHA under Regulation 22 of the Customs House Agents Licensing Regulations, 2004 (CHALR). The Enquiry Officer vide its report dated 30 -1 -2010, found that the CHA violated the Regulations 13(b), 13(d) & 19(8) of the CHALR, 2004. During the course of adjudication, the Licencing Authority, i.e., Commissioner of Customs (Airport & Admn.) vide Order dated 5 -8 -2011, revoked the CHA License and forfeited the security deposit made by the CHA.

2.3 In appeal preferred against the above order of the ld. Commissioner, the CHA claimed that the charges in the instant case against them were dropped relating offences under the Customs Act, 1962 vide Order dated 5 -1 -2012 passed by Commissioner of Customs (Preventive) while adjudicating the case under the Customs Act, 1962, in which they were also made the noticee. Accordingly, this Tribunal remanded the case to the Commissioner of Customs (Airport & Admin) to decide the issue afresh after considering the claims of the appellant and the findings of the order dated 5 -1 -2012.

2.4 The ld. Commissioner (Airport & Admin) has re -adjudicated the case and has held that the CHA has violated Regulations 13(b), 13(d) & 19(8) of the CHALR, 2004 and therefore, revoked the CHA License and forfeited the full amount of security deposit made by the CHA. Being aggrieved, the present appeal is filed before this Forum.

(3.)The ld. Advocate appearing for the appellant, submitted that in the present case, the appellant was approached by one forwarding agent, M/s. Draft Cargo Ways (India) Ltd., working, inter alia, for M/s. Himalayan Tours and Travels as forwarding agent. The documents for clearance of 600 bags of iron sponge meant for export and a letter of authorization, were handed over to him by the said forwarding agent for clearance purposes. As per authorization, the appellant's job was limited to clearance of consignment from Customs and Docks based on the documents provided by the exporter, M/s. Himalayan Tour & Travels through the said M/s. Draft Cargo Ways (India) Ltd. Accordingly, the said goods were stuffed in a container being No. BLJU2050020/20'. It is the submission that the said authorization also contained a self -declaration by the exporter that the goods meant for the export by them, did not contain any specified/contraband goods contrary to the provisions of the Customs Act, 1962. Since the Shipping Bill was filed by the CHA on the basis of invoices and packing list, provided by the exporter, it was not in their knowledge that the impugned export was in violation of provisions of Customs Act, 1962 and therefore, there was no occasion to advice the client by the CHA. Accordingly, the ld. Advocate submits that the violation of Regulation 13(d), does not survive. As regards the violation of Regulation 13(b), which inter alia, states that the CHA shall transact business at the Customs Station, either personally or through his employee, it is submitted that the appellant had brought the said consignments and handed over the same to Shri Mithun Ghosh, Jetty Sircar, for taking the same inside the Dock for completing the onwards shipping formalities. The ld. Advocate invited attention to Page 89 of the Appeal Paper Book, which is a copy of Temporary Jetty Sircar Licence issued by Kolkata Port Trust, where the appellant, i.e., M/s. Welcome Air Express Pvt. Ltd., has authorized him to make delivery cargo to and take delivery of cargo from the Kolkata Port Trust. It is his contention that it is clear from the impugned license that Shri Mithun Ghosh was an employee of the appellant firm. In view of this fact, it is submitted that the charges labelled against the CHA for violation of Regulation 13(b) does not arise. Regarding the violation of Regulation 19(8), the CHA shall exercise necessary supervision as may be necessary to ensure the proper conduct of their employee in the transaction of business and be held responsible for all acts or omissions of his employees. The ld. Advocate submits that there was no misconduct on the part of the Jetty Sircar, it cannot be said that the CHA in the present case, did not exercise the necessary supervision. It is submitted that in the present case, the CHA Licence was revoked on 5 -8 -2011 and therefore, he has already been punished sufficiently and now his license should be restored as it affects his livelihood adversely.
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