EXFIN SHIPPING (INDIA) LIMITED Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE case against the appellant herein, a CHA, holding CHA licence under Regulation 10 of the Customs House Agents Licensing Regulation, 1984 (CHALR), commenced on a complaint from one M/s Banco Products (India) Pvt. Ltd, Baroda that their consignment and bill of entry dated 10/05/99 had been withheld and they were being charged heavily by one M/s Shark Shipping Agency by using the licence of the appellant herein with the consent of Shri Amber Mufti, Power of Attorney holder of the CHA. Upon preliminary investigation, the CIU concluded that the allegation of M/s Banco Products (India) Pvt Ltd appeared to be true and accordingly an enquiry was initiated against CHA under Regulation 21(2) CHALR, 1984 by the Deputy Commissioner of Customs as Inquiry Officer.

(2.) THE following charges were leveled against CHA: -

(3.) THE Inquiry Officer held that Article of charge was not proved. He held that although they were paying certain amount and effecting the clearance, it is not established as to how the aforesaid persons used the licence of the CHA. In respect of findings on Article of charge, the Commissioner issued notice dated 29/01/2004 setting out reason for not agreeing with the findings of the Inquiry Officer in respect of this charge. He held that - I am in disagreement with the findings of the Inquiry Officer in respect of Article of Charge -1 i.e. violation of Regulation 13 of CHALR, 1984 wherein he has held that word, "used" does not find place in the construction of Regulation 13 of the CHALR and cannot be equated or synonmised with the words "transferred" or "sale". The private persons who were not the employees of M/s Exfin Shipping (India) Limited., namely S/Shri Vinod Raj Shirke, Sunil Chitnis, Takur B. Kapadia, Vernom Williams, Hiren L. Jasani and P.S. Lhia in their statements recorded under Section 108 of the Customs Act, 1962 have confirmed that they were unauthorizedly using the CHA licence of M/s Exfin Shipping (India) Ltd., CHA No. 11/883, and they used to pay commission for using the same. The statements of the aforesaid persons were recorded under Section 108 of the Customs Act, 1962 and, therefore, have to be taken as correct, proper and legally admissible and can be relied upon as valid evidence. Besides, the statements are in their own handwriting given voluntarily without being influenced by any force, threat or coercion and hence there is no ground to doubt the veracity and correctness of the recorded statements. It therefore follows that once a licence is allowed to be used by others on a commission basis without actually transacting business by CHA himself it does amount to transfer the business, and in the light of the above discussion, I am of the opinion that this charge stands PROVED".