Customs, Excise and Gold Tribunal - Mumbai
M.S. Mehta And Co. vs Collector Of Customs on 24 November, 1993
Equivalent citations: 1995ECR406(TRI.-MUMBAI), 1994(74)ELT304(TRI-MUMBAI)
ORDER R. Jayaraman, Member (T)
1. This is an appeal against the Order in Original No. S/8-11/85 Admn., dt. 5-11-1990 revoking the Custom House licence issued to the appellant's firm M/s. M.S. Mehta & Co. The firm is a partnership concern consisting of two partners S/Shri M.S. Mehta and Navin R. Shah. There were five charges against the appellant, out of which four were held to be proved by the enquiry officer and the Collector, after giving an opportunity to the appellants, considered the main charge held to be proved and came to the conclusion as below:
"On going through the documents mentioned above, in my view, it is clearly established that the CHA firm had permitted Shri R.B. Bhatia and his two sons to transact their own business on the licence of M/s. M.S. Mehta & Co. It is true that there is no allegation of consideration of money monthly or otherwise for such operation on the licence by the Bhatias and possibly, as has come in the initial statements also of the concerned person, this was done by Mr. M.S. Mehta only to help the Bhatias to earn a living, but the transaction will constitute transfer of the licence otherwise within the meaning if the Regulation 13 of the C.H.A. Licensing Regulations, 1984. Not only the CHA firm allowed the Bhatias to operate on their licence, they even facilitated this work by obtaining Custom Passes for Mr. Ramanlal Bhatia and his 2 sons by falsely showing them as employees of the CHA firm. This position is clearly established from the records and has at no stage been disputed on their behalf and by Advocate Mr. C.R. Patel. Accordingly I hold that the contravention of Regulation 13 of the Custom House Agents Regulations which was charge No. 1 in the charge sheet is established beyond any reasonable doubt. Once it is held that it was a case of transfer of licence even though the Enquiry Officer has held charges No. 2, 3 & 4 as proved these charges will necessarily fail because these charges are attracted only when the employees of a Custom House Agent firm are involved. Once it is proved that the Bhatias were doing their independent business, but on the licence of this CHA firm, it cannot be said that there would be contravention of Regulation 14(b), 20,14(k) and 19 of the Custom House Agents Licensing Regulations, 1984, for which charges 2 to 4 were framed."
2. In view of the aforesaid finding, the Collector ordered revocation of the Custom House Agents licence under Regulation 13 of the C.H.A. Licensing Regulations, 1984. The present appeal is against the aforesaid order.
3. Shri J.C. Patel, the learned advocate, does not dispute that one of the partners Shri M.S. Mehta applied for Customs passes in the names of three persons of Bhatias to help them earn a living, by working under their licence, though these Bhatias were not employed by them. Shri Mehta facilitated the Customs passes for them so that they can make a living independently operating under the licence. To that extent, the charge held against them is not disputed. He would however plead for extending leniency on the following grounds:
4. The firm is an established one, having business for nearly 30 years and previously there had not been any such allegation of misconduct resulting in any such proceedings. Even according to the Collector's findings recorded above, Shri Mehta had not received any monetary benefits in allowing the Bhatias to make their living. Even the allegation of Bhatias demanding money from the passenger has been held to be not proved. There has been no allegation of causing any revenue loss either by the Custom House Agent's firm or by the Bhatias. The appellant has been in this business for over 30 years and they may not be able to switch over to any other kind of business and hence permanent disability would cause serious hardship. He would therefore plead that on a stern warning to the appellant, the licence may be restored in view of the fact that already three years have elapsed after the passing of the order, since when the appellants are out of business.
5. Shri Mondal, the learned SDR, however vehemently contends that the CHA were found to be trading in the licence by bringing in unauthorised persons under their umbrella and hence there is a clear violation of Regulation 13 of the CHAs Licensing Regulations. There is no guarantee that the appellants would resort to the same method after restoration. Though there are no allegations against the Bhatias, which have come to the surface, the way they were brought into the CHA business proves the dubious method adopted and this is to be condemned. The connivance of the appellants is required to be seriously viewed. He would therefore oppose for extending any leniency.
6. After hearing both sides, we agree that this case cannot be dismissed lightly. All the same, the factors pleaded before us for extending leniency cannot be dismissed altogether. In this case we find that even according to Collector's finding, there are no allegations of any monetary consideration nor any action resulting in loss to Revenue. They are reportedly in this line for 30 years and a permanent disability would affect their livelihood. We therefore deem it proper that the revocation of the licence shall stand operative for a total period of 4 years from the date of order of the Collector and thereafter the licence may be restored to the appellants, on a clear warning endorsed on the licence to the effect that if any infringement of CHA Regulation is noticed in future, they would forfeit the licence for ever. This order is passed purely on humanitarian grounds, having regard to the accepted maxim that punishment should be commensurate with the nature of the offence established.