[Order per : A.K. Srivastava, Member (T)]. - Heard both the sides and perused the documents.
2. This appeal is filed against the Order No. 05/2007-08 dated 1-5-2007 passed by the Commissioner of Customs (General), Mumbai Zone-1, whereby he has confirmed the suspension of the CHA Licence No. 11/106 held by the appellant and its continuation under CHALR, 2004.
3. The appellant states that he is holding the CHA licence since the last more than 50 years and is enjoying an excellent reputation. He has several employees, who have been rendered jobless due to the passing of the order.
4. He has contended that he had always obtained authorization letters in connection with the import-export consignments entrusted to him and he has’ maintained the statutory job register as prescribed under the Regulations. He has contended that unless the prescribed documents are filed with the respective Bill of Entry, the proper officer would not assess any such deficient Bill of Entry. He pointed out that the CIU authorities, in respect of the Bill of Entry filed on behalf of one importer, M/s. Scale International, started certain investigations. Statements of various persons came to be recorded and the goods have been seized and are in control of the CIU department. Four persons have been arrested and 14 days judicial custody under the initial remand application has been granted by the competent magistrate. It is the contention of the appellant that there is absolutely no allegation against the CHA. Nor any of the arrested persons have given any inculpatory statement against the CHA firm, imputing any knowledge of the alleged mis-declaration. The statements of the proprietor of the appellant have been recorded, which appear to be clearly exculpatory in nature. The appellant states that one Mr. Salim Lalani, through his concern M/s. Mahek Consulting Services, was bringing business on a commission basis, to him since the last so many years. Mr. Salim Lalani in the normal course, used to bring the relevant documents, which were to be filed in the Custom House, along with the authority letter.
5. The appellant’s CHA licence was suspended with immediate effect vide the ex-parte order dated 7-2-2007 passed by the Commissioner. On appeal, the Tribunal vide order No. A/222/212B/2007/CSTB/CI dated 16-3-2007 set aside the suspension order and remanded the case to the Commissioner for fresh decision after extending a reasonable opportunity to the appellant of being heard in their defence. It was ordered that fresh proceedings shall be initiated and completed within a period of one month from the date of receipt of the CESTAT’s order dated 16-3-2007. After following the necessary adjudication proceedings, the Commissioner has passed the impugned order dated 1-05-2007 as referred to above.
6. We have examined the case. We find that the impugned order is incorrect on facts. Shri Vinod Manjrekar and Shri Shiraz Lalani, both the employees of the CHA firm, were never arrested at all, contrary to the findings recorded in para 4 and 14 of the impugned order passed by the Commissioner. There is absolutely no allegation against the appellant nor any of the arrested person has given any inculpatory statement against the appellant imputing any knowledge of the alleged mis-declaration.
7. The Commissioner, inter alia, invoked Regulation 12 of the CHALR, 2004 which stipulates that no CHA licence shall be sold or otherwise transferred. In the instant case, we find that the appellant has not sold/sub-let or otherwise transferred his licence to any other person. The, invoking of the said regulation, is, therefore, not in order. The reliance placed by the Commissioner on the judgment of the Tribunal in the case of Noble Agency v. Commissioner of Customs, Mumbai - is misplaced as the appellants has not sub-let his licence. Procuring work on commission basis does not amount to sub-letting or otherwise transferring the CHA licence to other persons as per the decision of the Tribunal in the case of Crown Shipping Agency v. Commissioner of Customs - . The CHA is not responsible, if during the course of examination by the customs officers, any mis-declaration of the goods resulting in the loss of Revenue is detected. It does not warrant suspension of the licence of the CHA. In this connection, reliance is placed on the judgment of the Tribunal in the case of KMS Cargo Pvt. Ltd. v. Commissioner of Customs, New Delhi - .
8. The Commissioner has in para 11 of his order has observed that the appellant without verifying the genuineness of the importer signed the Bill of Entry for clearance and thereby he aided and abetted the conspiracy involving fraudulent methods. We find that the charge of aiding and abetting the illegal import cannot be fastened on the appellant, who, in the capacity of a CHA is not supposed to look into the details of genuineness of the importer when IEC number is produced by the importer. More over, it has been held that the CHA files shipping documents in the customs on the basis of the material given to him by his clients and if in the case of such exercise of his functioning, he believes in good faith that these documents were genuine, he is not liable to penal action. In this connection, reliance is placed on the following case laws :
(i) Nimesh Suchde v. Commissioner of Customs, Nhava Sheva, ;
(ii) Eagle Agency v. Commissioner of Customs, Mumbai, ;
(iii) Sushil Malik v. Commissioner of Customs, New Delhi, .
9. The charge of aiding and abetting against the appellant is based merely on assumptions and presumptions, which has not got any evidential value. The department has not tendered any clinching evidence to this effect. As per the settled case law, “abetment” pre-supposes knowledge of the proposed offence and pre-supposes benefit to be derived by the abettors therefrom. No evidence to this effect has been tendered by the department against the appellant. In the absence of conscious knowledge on the part of the appellant, the suspension of the appellant’s licence is not justified. The appellant has been regularly obtaining the authorizations from his clients and such authorizations, whenever required, were produced before the customs authorities.
10. We, therefore, hold that the appellant is not guilty of violation of Regulations 12, 13(a) and 13(b) of the CHALR, 2004. The impugned order passed by the Commissioner is not sustainable. The impugned order is set aside and the appeal is allowed with consequential relief.
(Pronounced in Court)