ANIL CHOUDHARY, J. -
(1.)The appellant, a Customs Broker/CHA, having License No. 11/1492 issued by the Commissioner of Customs, Kanpur. The appellant is also permitted to work at Mumbai Customs Commissionerate. The appellant filed Bill of Entry No. 3609751, dated 22 -10 -2013 on behalf of the importer M/s. R.N. Trading for clearance of assorted soft drinks, chocolates, baked beans, vinegar, etc. The Bill of Entry was registered on 8 -11 -2013 and was presented for examination on 11 -11 -2013 by the employee of the appellant along with No Objection Certificate (NOC) from 'Food Safety & Standard Authority of India' (FSSAI in short). The Customs authorities found that the NOCs produced were forged or bogus, which was confirmed by the authorities of FSSAI by their letter dated 4 -12 -2013. On examination by the Customs Intelligence Unit (CIU), the goods were found to be as per declaration, i.e., packing list and invoices. The goods were valued at Rs. 8,10,431/ - were seized. Thereafter the importer made a request for provisional release, the same were allowed to be cleared on payment of duty, Bank Guarantee and Bond as well as production of fresh NOC issued by the FSSAI dated 3 -2 -2014.
1.1 In the course of investigation, Mr. Hemant Kumar Pol, an employee of the appellant firm in the statement recorded on 18 -12 -2013 submitted that he had handed over all the relevant documents to one Shri Prakash Phapale on 6 -11 -2013 to take an appointment with FSSAI. The said Prakash Phapale had introduced one Shri Nadin Khanda, an importer. That at the office of FSSAI, he met one Shri Sachin, who undertakes to do the job (getting certification) on commission, being gross charges of Rs. 5,000/ - per certificate including the FSSAI fees, which was agreed upon. The certificates were collected by Shri Prakash Phapale from the said Shri Sachin, who had assured that he will give the receipt issued by FSSAI later on and the said NOCs were found to be forged by the Customs authorities. He further submitted that since he was clearing food items for the first time, he did not know the formalities and relied upon the agent Shri Sachin.
1.2 In the statement, Shri Prakash Phapale also submitted that he was a transport agent and was not aware with the FSSAI formalities and/or procedure and accordingly was dependent on the said Sachin. It was also submitted that the importer was not aware of the dealing with said Sachin. There is no active omission and/or commission or contumacious conduct on their part.
1.3 Subsequently, after about one year, the appellant CHA has been prohibited for the alleged occurrence vide order dated 26 -12 -2014 under the provisions of Regulation 23 of CBLR, 2013. Thereafter, post 26 -12 -2014 opportunity of hearing was given, wherein taking notice of the aforementioned facts, the Commissioner of Customs (General) vide the impugned order dated 20 -1 -2015 have recorded the finding that the appellant is trying to disassociate himself for culpable act of authorized employee Shri Hemant K. Pol, which cannot be accepted under the CBLR, 2013. It was further found that the appellant is responsible for the mischief, which occurred with respect to submission of bogus NOC for clearance of the aforementioned Bill of Entry and accordingly, the learned Commissioner found that the appellant Customs Broker is prima facie responsible for the vicarious liability for the act of omission of its employee. Further, the learned Commissioner observed that the order of prohibition cannot continue in perpetuity and the ends of justice would be defeated. It is further observed that the matter has been referred to the Kanpur Commissionerate for action in terms of CBLR, 2013 which provide for completion of enquiry and proceeding in a time bound manner. Further, if on expiry of the time limit for inquiry proceedings, no decision is taken the Customs Broker can approach for review of the present impugned order and accordingly, it was ordered to continue the interim prohibition till further orders.
(2.)The learned Counsel for the appellant vehemently urged that there is no finding as to the complicity of either staff or the management of the CHA firm in the whole episode of submission of improper NOC. The only finding is that the staff of the appellant Mr. H.K. Pol, due to lack of knowledge of FSSAI procedure, has been taken for a ride by the said Sachin. It is further urged that the said event is not of such a magnitude and or leading to loss of revenue and/or customs duty and as such, the impugned order is bad and fit to be set aside.
2.1 It is further urged that there is no such emergent reason arising out of the event in question, requiring immediate prohibition from working in Mumbai Customs Commissionerate. It is further urged that due to the impugned order, the appellant is suffering both financially and loss of goodwill and loss of livelihood for the management and its employees.
2.2 The Counsel further urges that the show cause notice dated 28 -2 -2015 has been issued and served on the appellant by the Commissioner of Central Excise & Customs, Kanpur, as the said inquiry being commenced, there is no purpose of the continuation of the prohibitory order is made out. The appellant further relies on the ruling of the Hon'ble Bombay High Court in the case of Babaji Shivram Clearing & Carriers Pvt. Ltd. v/s. Union of India - : 2011 (269) E.L.T. 222 (Bom.), wherein the Hon'ble High Court in the case before it, where there was no loss of revenue and the foreign supplier had sought re -export of the goods in question and had also admitted the mistakes in the documents in the export consignment and the investigation have not found that the CHA/applicant played active role in fabricating any documents and there was no loss of revenue, as no Bill of Entry was filed for the impugned goods and no benefits were claimed for export of goods, it was held that the suspensions of the CHA's license was not proper and the same was set aside.
(3.)The learned AR relies on the impugned order and states that the appellant has been rightly penalized for the act of omission on part of its authorized employee.