Customs, Excise and Gold Tribunal - Bangalore
M/S International Shipping Agencies, ... vs Commissioner Of Customs, Customs House ... on 25 July, 2001
Equivalent citations: 2001(78)ECC72, 2001(136)ELT974(TRI-BANG)
ORDER
Shri S.Sekhon
1. This appeal has been filed, against an order No. S-34/37/99 I&B Cus dated 16.05.2001 of the Commissioner of Customs, who after considering the submissions of the appellant, a licensed Custom House Agent, ordered:-
"I suspend the regular license of M/s International Shipping Agencies for a period of six months from the date of receipt of this order under Regulation 21 read with Regulation 23 of the Custom House Agents Licensing Regulations, 1984."
2. The brief, relevant facts are as below:-
a) The appellant was functioning as Custom House Agent (herein after referred to as CHA) in Customs House, on basis of a regular license granted under Custom House Agents Licensing Regulations, 1984(herein after referred to as CHALR-84). On 8.3.2000, they were issued a show cause notice under regulation 23 under CHALR-84 for revocation of CHA license.
b) The allegations in the notice were, that 3 Bills of Entry filed by the appellant somewhere in 1998, on behalf of the importers, relating to three cases of imports of cars, were found to be filed on instruction given to the CHA by persons other than importers and the documents (Car Registration papers in U.A.E.) filed alongwith these Bills of Entry were found to be fake /not representing correct fact by the DRI/ Central Excise officers, who intercepted the cars cleared by the Customs House, based on these documents.
c) The enquiry officer, appointed in terms of regulations 23(1) of CHALR submitted a report to the Commissioner of Customs and a copy of the same was forwarded to the appellants on 29.9.2000 to which they submitted a detailed reply and subsequently a personal hearing was conducted on 5.2.2001. The order dated 16.5.2001 was served on the appellants on 25.5.2001.
3. We have heard both sides and considered the submissions and after considering the same find:-
(a) Regulation 23 of CHALR 84 stipulates that the enquiry officer should consider documentary evidence and take oral evidence. There is force in the appellant's submissions, that no reasons have been given by the enquiry officer for not examining the witnesses and of producing of documents. The finding arrived that the appellant was aware of the nature of documents, because the adjudication order copies, on the action taken on the importers sans the CHA under the provision of Customs Act 1962 were endorsed to him will not absolve the requirement of the CHALR Regulations to conduct enquiries as prescribed there under.
b) We do not find any reason to concur with the impugned findings of the learned Commissioner that merely because the CHA took instructions from an alleged third party, that also without a notice to the CHA, and not the person in whose names the Bills of Entry documents were filed for clearance, would ipso-facto lead to the conclusion that the CHA was aware of the fact that the documents were false/fabricated/or did not reveal the correct facts. The documents in question are Registration books for the subject cars, which have been said to be fabricated and not to depict the true position of the registration of the cars outside India in U.A.E. These documents (registration books etc) are records of a Government Department of U.A.E being maintained in a foreign country only after detailed examination of the documents and enquiries conducted by the Indian authorities in U.A.E the charges could be made. The present order impugned before us does not bring out any special and specific material or reasons as how the CHA was aware of the actual facts in U.A.E documents & about the cars being not registered therein on documents showing the dates of registration. The CHA has produced the documents which were given to him on behalf of the importers. The CHA, cannot be held responsible for the violations for such an Act, under Regulation 21 of the CHALR 84. Regulation 21 of the CHALR 84 reads as follows:-
"Suspension or revocation of license:-1) The Commissioner may, subject to the provisions of Regulation 23, suspend or revoke the license of a Custom House Agent so far as the jurisdiction of the Commissioner is concerned and also order for forfeiture of security on any of the following grounds:-
a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under Regulation 11;
b) failure of the Custom House Agent to comply with any of the provisions of these regulations, whether within the jurisdiction of the said Commissioner or anywhere else;
c) any misconduct on his part whether within the jurisdiction of the said Commissioner or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Custom Station.
2. Notwithstanding anything contained in sub-regulation(1), the Commissioner may, in appropriate cases, where immediate action is necessary, suspend the license of a Custom House Agent where an enquiry against such agent is pending or contemplated."
The suspension/revocation of licenses under this regulation could be made on any of or all of the grounds given under Regulation 21(1). The Commissioner has not come a specific findings as t under which ground of regulation 21(1) he is considering that there was a failure or misconduct on part of the CHA. A perusal of this CHALR-84 does not indicate that taking alleged instructions from a third party, would be in contravention cast as regards the obligation on CHA under regulation 14 of CHALR 84. The obligations on a CHA have been listed under regulation 14. They do not cast any such obligation on him, restricting/banning the CHA from taking instructions from a third party. The misconduct on part of a CHA, cannot be beyond the obligations cast on them under regulation 14 of the CHALR 84. The Commissioner before coming to a conclusion that there has been a misconduct on part of CHA has to establish as to which obligation out of the detailed obligations referred to under Chalr 84 regulation 14 have been expressively violated. In absence of the same we cannot uphold the order of the Commissioner suspending the license for a period of six months as arrived at in the impugned order.
(c) We find that the appellants had submitted that they have gone in appeal against the imposition of penalty under Section 112 of the Customs Act and the appeal is pending before he Commissioner (Appeals). Therefore, we are of the view that the Commissioner should have awaited the results in appeal before he could consider the effects of the imposition of penalty under Section 112 of the Customs Act on the CHA to be a misconduct on the part of a CHA. His finding as here in below:-
"that fact that the Order-in-Original relating to Bill of Entry No. 5140 is under appeal will not vitiate these proceedings as the show cause notice is not based only on the Order-in-Original relation to Bill of Entry No. 5140 but on the clearances effected in respect of two other Bills of Entry also. The present proceedings are for the misconduct of the CHA. Even if the Order-in-Original in Bill of Entry No. 5140 is set aside in appeal, the misconduct revealed in the clearances in respect of the other two Bills to Entry cannot be wiped off"
can therefore be not upheld, more so, when in other two cases, the Department itself did not choose to issue a show cause notice to the appellant. Therefore, the findings of the learned adjudicators in these two cases, arrived at, as regards the misconduct of the CHA, without them being put to a notice is a finding arrived without following the principles of natural justice.
a) Findings about a conduct, arrived at, without issuing a notice to such person concerned about that conduct, cannot be made use in another proceeding against that person. If it is so done, the principles of natural justice are grossly violated. An order which relies on material to arrive at a finding in violations of principles of natural justice, cannot be upheld. We therefore cannot uphold the present order based on misconduct as arrived.
4. In view of our findings the order impugned cannot be upheld and is set aside and the appeal is consequently allowed.
5. Before parting with, we observe that the Commissioner/adjudicating authority wants to take any action under CHA reference to the suspension of license or any other action, He may do so depending upon the outcome of the pending appeal before the Commissioner (Appeals). Ordered accordingly.
(Pronounced in the open court on)