M/S. S. Guha Sarkar & Co vs Commr. Of Customs (Airport & Admn.)

(Arising out of the Order-in-Original No.KOL/CUS/AIRPORT/ADMN/22/2014 dated 19/12/2013 passed by the Commissioner of Customs (Airport & Admn.), Kolkata)

For approval and signature of:

DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

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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 authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

M/s. S. Guha Sarkar & Co. APPELLANT(S) VERSUS

Commr. of Customs (Airport & Admn.), Kolkata RESPONDENT(S)

APPEARANCE

Sri R.K. Chowdhury,Advocate & Sri B.N. Pal, Advocate FOR APPELLANT(S) Sri S.K. Naskar, A.C. (A.R.) FOR THE RESPONDENT(S) CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER

DATE OF HEARING : 24/03/2015

Pronounced in the Court on : 29/05/2015

ORDER NO. A/75266/2015

Per DR. I.P. LAL

The instant appeal is filed against as the order-in-original dated 19/12/2013 passed by the Commr. of Customs (Airport and Admn.), Kolkata whereby the Ld. Commissioner revoked the CHA License No. 114 (PAN No. ABLFSAA 58G) held by the appellant and forfeited the full amount of the security deposit furnished by the appellant under Regulation 20 (1) of the CHALR, 2004.

2. Brief facts of the case are as follows:

2.1 DRI, Kolkata in their letter dated 23/7/2012 informed the Commr. of Customs (Airport & Admn.) that they have booked a case wherein prohibited goods were attempted to be smuggled into India alongwith other goods through Kolkata vide Bill of Entry No. 6935877 dated 26/5/2012, while the goods were declared as 360 Rolls RG-6 semi finished coaxial Cables, on examination, 860 cylinders (13.6 Kgs.) each of R-22 refrigerant gas (a prohibited item for import) and 49920 pcs. of measuring tapes (an item liable to anti-dumping duty) were found concealed behind 120 Rolls of coaxial cables. Declared importer in this case was Nityananda Dey of M/s. Zen Electronics whereas M/s. P.K. Ghosh & son acted as CHA. It was found that similar consignment of goods declared as coaxial cable was also imported previously in the name of Mr. Nityananda Dey vide Bill of Entry No. 6710287 dated 2/5/2012. M/s. S. Guha Sarkar & Co. had acted as CHA for this consignment.

2.2 During the course of investigation, statements of Mr. Nityananda Dey,the declared importer, Shri Prakash Jha of M/s. P.K. Ghosh and sons and Shri Amar Ch. Roy , representative of M/s. S. Guha Sarkar & Co. were recorded . Shri Nityananda Dey stated that he is not involved in any business of import or export, that he has no knowledge about the consignments imported at Kolkata port in his name and IEC..that he has no knowledge regarding the authorization letter issued to M/s. P.K. Ghosh and Sons, CHA and the letter acted for General Electronics. He has not signed the letter.Both Shri Prakash Jha and Shri Amar Ch. Roy made similar averments. They stated that they received the job through some persons and that they were not aware about the declared importer Shri Nityananda Dey.They further stated that the actual importer of the consignment was done through Binod Lachwani with whom they discussed time and again in connection with the above consignment. Shri Roy stated that after clearance of the goods by Customs, they arranged for delivery of the goods from Haldia to Concor Depot, Khidirpore.

2.3 From the above, it appeared that the appellant CHA firms have failed to discharge their obligation as prescribed under Regulations 13 (a) and 13(o) of Customs House Agents Licensing Regulations, 2004 (CHALR, 2004) by acting as CHA to the Importer without knowing the importer. Consequently, the Ld. Commissioner vide CHA order No. 7 (2012) dated 21/08/2012 suspended the license of M/s. Guha Sarkar & Co. and confirmed the same vide order dated 9/10/2012 after giving post decisional hearing. The suspension order and its confirmation was quashed and set aside by the Honble High Court vide its order dated 8/12/13 in writ petition No. 967 of 2012 filed by Shri S. Guha Sarkar and others. However, Customs Authorities were given the liberty to initiate proceedings under Regulation 22 of CHALR as deemed fit.

2.4 Accordingly, an enquiry officer was appointed by the Ld. Commissioner to enquire the case of alleged misconduct on part of CHA. On conclusion of the enquiry proceedings. The enquiry officer found the CHA i.e. the appellant, guilty of alleged misconduct on his part and a Show Cause Notice dated 6/11/2012 was issued by the Commissioner of Customs (Airport & Admn.), Customs House, Kolkata, directing the CHA M/s. S. Guha Sarkar & Co. to show cause as to why the CHA license held by them should not be revoked and their security deposit should not be forfeited under the Provisions of Regulation 20 (1) of CHALR, 2004. The show cause notice was adjudicated by the Ld. Commissioner which culminated into passing the impugned order. Being aggrieved, the appeal is filed to this Forum.

2.5 M/s. Guha Sarkar & Co. filed writ petition No. 41 of 2014 before the Honble High Court of Kolkata challenging the findings of the Ld. Commissioner vide his order dated 19th December, 2013.

The Honble High Court observed as under:

I concede that there is flaw in that part of the order (paragraph 25 of the order) of the Ld. Commissioner by disallowing the cross examination. It was further observed by the Honble Court that petitioners was at liberty to prefer an appeal from the impugned order dated 19th December, 2013 and it would be open to them to lead whatever evidence that they may consider fit and proper to proof that the subject letter of authorization was actually issued by the authorized representative of M/s. Gen Electronics. The Court further observed that all documents i.e. the Bill of Entry No. 6935877 dated-26/05/2015, copy of the show cause notice issued to M/s. Zen Electronics and its outcome and declaration filed in respect of Bill of Entry No. 67102827 dated-2/5/2012 including all the documents, if relied upon must be made available by the Revenue to the petitioner. if not supplied to them earlier.Accordingly, the appeal is taken up for disposal.

3. The Ld. Advocate has submitted that admittedly, the appellant was issued a letter of authority by the importer, Gen Electronics and the same is appearing at page 65 of the appeal. It is the submission that the importer has been issued the IEC (Import Export Code No.) by the competent authority after due verification of the particulars of the importer and that after verifying of the documents of import and the letter of authority handed over to the appellant by the said importer through his son, filed the bill of entry. He submitted that the Ld. Commissioner has violated the principles of natural justice in as much as the appellants sought for certain documents for inspection/verification as also cross examination of certain proceedings named in the letter dated 25/10/2013. However the Ld. Commissioner had neither provided the documents sought nor did he allow the cross examination of the persons named by the appellant. It is the contention that the Ld. Commissioner has passed the order beyond the period stipulated in the regulation in as much as the purported offence report has been received by the Department on 23/7/2012 and the order for revocation of CHA license and forfeiture of CHA license was passed on 19/5/2013 which is beyond 09 months. It is the submission that limitation prescribed under the said regulation is mandatory in nature and there is no scope for passing any order beyond the prescribed time limit.

4. As per contra, the Ld. A.R. for Revenue reiterated the findings of the Ld. Commissioner. He submitted that the letter of authorization in the present case was found to be fake and Shri Nityananda Dey , the declared importer has categorically denied that the impugned consignments were imported by him. He has further stated that he has no knowledge of the authorization letter given to CHA.

5. Heard both the sides and perused the records.

6. We find that in the present case the Ld. Commissioner has revoked the license of the appellant viz. M/s. S. Guha Sarkar & Co. and forfeited their security on the ground that the said CHA violated the Provisions of Regulation 13 (a) and 13 (o) of CHALR, 2004 as they did not verify the antecedents of the importer while the actual importer was some one else. As against this, it is the contention of the appellant that they were having the authorization from the declared importer and that the charges labelled against them are not proved. On the other hand, according to Revenue, the Commissioner has rightly disallowed the cross-examination as Shri Nityananda Dey categorically denied to have imported the impugned consignments. The representatives of the appellant CHA firm has confirmed that he received the import documents from the person, Shri Manash Palit and was not aware about the actual importer. We however observe that the appellants grievance of not allowing the cross-examination and supply of the relied upon documents were not addressed positively and to this extent, the principle of natural justice has not been followed. Accordingly, we set aside the order of the Ld. Commissioner and direct him to decide the case afresh after allowing cross-examination of the persons as requested by the appellant and after supplying copy of the relied upon documents if not supplied so far. We also direct that all the points raised by the appellant including limitation should be considered while passing the order. All issues are kept open. It is needless to mention that adequate opportunity of hearing should be given to the appellant before the matter is decided. The Ld. Commissioner will pass a reasoned order preferably within 03 months from the date of communication of this order. The appeal is disposed off as above.

( Pronounced in the Court on 29/05/2015 ) 29/05/15 29/05/2015 (DR. D.M. MISRA) (DR.I.P.LAL) JUDICIAL MEMBER TECHNICAL MEMBER

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Customs Appeal No. 76219/2014

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