(1.)Ashok Jindal, Member (J)
(2.)THE appellant is in appeal against the impugned order wherein their customs house agent licence No. 11/896 has been revoked by the Commissioner of Customs (General) on February 28, 2013. Brief facts of the case are that on a specific information the Directorate of Revenue Intelligence officials detained three consignments and found that one Shri Dhirubhai Shah is using the customs house agent licence of the appellant for clearance of the mis -declared goods. On the basis of enquiry report, proceedings under regulation 22 of the Customs House Agents Licensing Regulations, 2004 has been initiated against the appellant and charges were framed under regulations 12, 13(a), 13(d) and 19(8) of the Customs House Agents Licensing Regulations, 2004. After the enquiry report, personal hearing was granted to the appellant by the learned Commissioner who observed as given below:
"3. Acting on a specific information, officers of the Directorate of Revenue Intelligence, Mumbai identified and detained three consignments on March 31, 2003 arrived under three different airway bills at Air India Light Warehouse, ACC, Sahar showing consignee as M/s. Peak Impex, M/s. A.K. Traders and M/s. Mufema Enterprises with the description of goods declared as 'artificial flowers and key chain' suspected to contain computer parts, button cell and electronic goods. On further intelligence, two more consignments were intercepted by Directorate of Revenue Intelligence at ACC on April 3, 2003 and April 1, 2003.
4. The aforesaid consignments were examined without waiting for bills of entry to be filed, as available intelligence indicated that the said consignments may be cleared by manipulation of "marks and numbers" on the packages or by substitution of packages. On examination of the said consignments, intel pentium microprocessor and IC's (Rs. 30,39,950 CIF), button cell of Maxell Sony (Rs. 14,81,610), artificial flowers and game circuit board (Rs. 5,88,720 CIF), LCD projectors, data projectors, cameras (Rs. 15,66,452 CIF) and VCD players, iron boxes (Rs. 3,70,000 CIF) were found and the said goods were seized under panchanama dated March 31, 2003 and April 1, 2003.
5. On further investigation, statements of various persons have been recorded including Shri Dhirubhai Shah, an employee for the name sake of customs house agent M/s. Peak Agencies, was using the customs house agent licence No. 11/896 of M/s. Peak Agency for clearance of the said mis -declared goods and the statement of Shri Ved Kumar Kambil, proprietor of M/s. Peak Agency have also been recorded during the time of investigation.
6. Shri Ramesh Gada, proprietor of M/s. Pearl Impex in his statement dated April 2, 2003 recorded under section 108 of the Customs Act, 1962, inter alia, stated that he had imported all the mis -declared consignments at ACC and cleared through Shri Dhirubhai Shah and the clearance was made through the use of customs house agent licence of M/s. Peak Agencies. He further stated that since Directorate of Revenue Intelligence has intercepted one more consignment he asked Dhirubhai to clear the consignment of six packages containing 240 numbers of pentium four processors and 3,500 numbers of key chains immediately; that on April 1, 2003, Shri Ajay Patel, who ordered this consignment, came with his vehicle and took delivery of six packages. Shri Ramesh Gada was arrested on April 3, 2003.
7. Shri Dhirubhai Shah, in his statement recorded on May 7, 2003 under section 108 of the Customs Act, 1962, inter alia, stated that he met Shri Ved Kumar Kambil, proprietor of M/s. Peak Agencies and helped him in getting back his suspended licence by paying off his debts of Rs. 56,000; that Shri Ved Kambil was indebted to him, Shri Ved Kumar Kambil allowed him to use his customs house agent licence and showed him as one of his employee so that he (Dhirubhai) could use his customs house agent pass; that he thereafter started using customs house agent licence and paid him Rs. 5,000 for the same; that he had handled the consignments of M/s. A.K. Traders, M/s. Muftema Enterprises, M/s. Pearl Impex and M/s. Dipanjali Enterprises; that he had done the clearance of all the four aforesaid firms by using the customs house agent licence of M/s. Peak Agencies. He affirmed and confirmed that the statement of Shri Ramesh Gada was correct. He further admitted that the consignments which were cleared by him were mis -declared and Shri Ramesh Gada used to give him Rs. 1 lakh for meeting all expenses of clearances and used to get his commission from the same. He was arrested on May 7, 2003.
8. Shri Ved Kumar Kambil, proprietor of M/s. Peak Agencies, customs house agent licence No. 11/896 in his statement, inter alia, stated that during the time of suspension of his customs house agent licence, he met Mr. Bharat Bhai (brother of Dhirubhai) and the said Bharat Bhai had settled the matter with Ganpath Ingle to whom he had taken loan of Rs. 42,100 and got back his customs house agent licence in the year 1998; that Shri Bharat Bhai approached him for using his customs house agent licence on Rs. 5,000 per month; he agreed to the proposal; that in the year January, 2003, CIU Customs, ACC, Mumbai had booked a case regarding under valuation against M/s. Rishabh Enterprises run by Dhirubhai, brother of Bharat Bhai; that case was settled after paying a differential customs duty; that he got a wind and told Dhirubhai and Bharatbhai to stop using his customs house agent licence all together and surrender their customs pass."
Thereafter, he revoked the customs house agent licence on the premise that the charges levelled have been proved. Aggrieved by the said order, the appellant is before us.
Heard both sides.
(3.)THE learned advocate appearing for the appellant submitted that with regard to article of charges under regulation 12 of the Customs House Agents Licensing Regulations, 2004, no licence shall be sold or otherwise transferred. At the time of investigation of Directorate of Revenue Intelligence, Shri Dhirubhai Shah made a statement that he is using the licence of the appellant on payment of Rs. 5,000 per month. In fact, this statement was given under duress and coercing which was retracted by Shri Dhiru -bhai Shah within 24 hours. The said statement is not reliable in the light of the evidence produced by the appellant that Shri Dhirubhai Shah was an employee of the appellant and gets a salary of Rs. 5,000 per month. It was duly entered in the books of accounts and to support the genuineness of the books of accounts he produced the income -tax return which shows that the salary paid to the Shri Dhirubhai Shah as expenses by the appellant. Therefore, the charge of sub -letting of licence by the appellant to Shri Dhirubhai Shah does not proved.
The learned advocate further submitted that the another charge against the appellant is that under regulation 13(a) that he was not having proper authorization for clearance of the goods. In fact, all the documents including import register have been taken over by the Directorate of Revenue Intelligence during investigation and the same have not been produced before the inquiry officer as well as before the Commissioner. In the absence of the said records, the appellant has not been able to produce the authority letter from the importers. When the Revenue themselves have not been able to produce the required evidence which is in their custody, therefore, adverse inference cannot be drawn against the appellant. He further submitted that at the time of enquiry, this fact has come on record that the records taken away by the Directorate of Revenue Intelligence is not available with them. Therefore, this charge also stands not proved.
The learned advocate further submitted that the charge under regulation 13(d) is consequently charged to regulation 13(a). If the charge under regulation 13(a) stands not proved, therefore, the charge under regulation 13(d) is also stands not proved.
The learned advocate further submitted that another article of charge against the appellant is for violation of regulation 19(8) of the Customs House Agents Licensing Regulations, 2004. The salary register and the income -tax return for the relevant period shows that Shri Dhirubhai Shah was an employee of the appellant and the appellant was having full control over Shri Dhirubhai Shah and the said fact has been confirmed during the course of enquiry proceedings.
The learned advocate further submitted that in the customs proceedings, a penalty of Rs. 20,00,000 was imposed on Shri Dhirubhai Shah but the appellant was not made a party to the show -cause notice. The order of imposing penalty also has been stayed by this Tribunal observing that Shri Dhirubhai Shah has not misdeclared the goods as they have not filed bills of entry for clearance of the goods. As this Tribunal has already observed that the employee of the appellant, i.e., Shri Dhirubhai Shah has not filed any bills of entry for clearance of the goods, the question of mis -declaration does not arise.
In these circumstances, the learned advocate prays that the impugned order should be set aside.