ORDER
P.G. Chacko, Member (J)
1. This appeal is against revocation of a CHA licence by the Commissioner of Customs (Port – Import), Chennai. In an earlier round of litigation between the CHA and the Commissioner, we had set aside the latter’s order suspending the licence vide Final Order Nos. 561 & 562/2004 dated 13-7-2004 in Appeal Nos. C/234 & 235/2004 [2004 (175) E.L.T. 110 (Tribunal)]. In that final order, we had made it clear that the order would not stand in the way of any inquiry proceedings already commenced against the CHA under Regulation 23. The order impugned in the present appeal is one passed by learned Commissioner at the end of such inquiry proceedings under Regulation 23.
2. After examining the records, we find that a statement was recorded from Shri V. Nani Rao (Managing Partner of the CHA-firm) as part of inquiry under Regulation 23. In this statement (recorded on 15-9-2004), Shri Nani Rao stated that Shri Dilli Babu had been appointed as their manager on a consoli-dated salary, that (Shri Babu) he had solicited business of M/s. Prabhu Agencies (Importer), and that he (Shri Babu) was allowed to handle the Customs work of M/s. Prabhu Agencies without directly dealing with the latter. After examining this statement of Shri Nani Rao, learned Commissioner noted that the facts and circumstances of the case had changed and, further found that the CHA transactions were done through Shri Dilli Babu as a principal (a sort of franchisee) and not as an employee. Apart from this, new facts have come on record through an affidavit dated 23-1-2006 filed by Shri S. Subramanian, Commissioner of Customs (Imports), Chennai. We have carefully examined the contents of this affidavit.
3. Heard both sides. Learned counsel for the appellant claims that there is no change of facts or evidence since our earlier order. It is submitted that none of the findings recorded in the earlier order has been questioned by the respondent and, therefore, on the basis of such findings, the order of revocation of licence requires to be set aside. Learned SDR relying on Shri Nani Rao’s latest statement, submits that the role played by the CHA in relation to the Bills of Entry filed by them in respect of the import made by M/s. Prabhu Agencies stands disclosed and there can hardly be any denial of the fact that the CHA was acting unauthorisedly without observing relevant regulations. Learned SDR urges that the illegal activities of such CHAs be curbed by clamping on the appellants an order befitting the facts and evidence on record.
4. After giving careful consideration to the submissions, we find that, in our earlier final order dated 13-7-2004, we had observed that, apparently, Shri Dilli Babu was one of the employees of the CHA. It was also found that the Bills of Entry were filed by an authorised representative of the CHA. It was also observed that nothing had been brought on record to show that the CHA transacted business, in relation to the subject goods, through Dilli Babu. It was on the basis of these findings that the charge against the appellants under Regulation 14(a) was held to be unsustainable. Regulation 14(a) required a CHA to act only under written authorisation by importer/exporter. We find that the new pieces of evidence brought on record would change the complexion of the case with reference to Regulation 14(a). In our earlier order, we had specifically noted the appellants claim that both the Bills of Entry [Bills of Entry dated 8-1-2004 and 10-1-2004] had been lawfully filed and that the first Bill of Entry had been lawfully cancelled. This claim was not contested before us in the earlier round of litigation. The situation is different now. We have perused learned Commissioner’s affidavit, which states that, at the relevant time, there was no law authorising cancellation of a Bill of Entry, though the law permitted amendment thereof. The affidavit further observes that a standing order was issued subsequently governing amendment and cancellation of Bills of Entry. Thus the Bill of Entry dated 10-1-2004 was obviously cancelled without the authority of law. It was open to the proper officer of Customs to permit the importer/CHA to get the Bill of Entry dated 8-1-2004 amended. Instead of doing this, the officer straightaway cancelled the Bill of Entry dated 8-1-2004 and acted upon the Bill of Entry dated 10-1-2004, thereby allowing the importer to enjoy the benefit of concessional rate of duty under a notification which was issued on 9-1-2004. Learned Commissioner’s affidavit further states that disciplinary proceedings are under way against the officer concerned. These facts brought on record by the respondent would go a long way to change the complexion of the case.
5. It is evident from the facts and evidence on record that the action against the CHA was occasioned by the illegal cancellation of the Bill of Entry dated 8-1-2004. Had the Bill of Entry been allowed to be amended in accordance with law, the importer would not have been able to claim, the benefit of the aforesaid notification, which was issued on 9-1-2004 (amendment dating back to the date of filing). The proper officer cancelled the Bill of Entry, thereby enabling the importer to avail the benefit of concessional rate of duty under a fresh Bill of Entry, which was filed on 10-1-2004. In these facts and circumstances, in our considered opinion, it could not have been alleged that the CHA acted in collusion with the importer to evade Customs duty. If, at all, there was any collusion, the officer concerned was a party to it. We salute the Commissioner’s statement indicating his resolve to punish that officer.
6. Having found that the basic allegation against the CHA is not sustainable on the facts and evidence now on record, we hold revocation of their licence to be unsustainable and accordingly set aside the impugned order. The appeal stands allowed. We make it clear that this order will not stand in the way of the respondent acting against the CHA in future, if it be found, on fresh set of facts, that they have not observed the CHA Licensing Regulations with a view to helping any importer/exporter evade the law to the detriment of the Revenue.
(Dictated and pronounced in open court)