Customs, Excise and Gold Tribunal - Mumbai
Eagle Transport Services vs Commissioner Of Cus. on 1 February, 1999
Equivalent citations: 1999(112)ELT53(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. This application is for modification of the Tribunal's order dated 19-4-1997 dismissing the appeal filed by the applicant now before us.
2. Advocate for the applicant says that after hearing the Counsel in a writ petition against the Tribunal's order, the Hon'ble judges of the High Court Bench kept the matter pending for six weeks and advised the applicants to file an application before the Tribunal for review of the order passed.
3. The High Court has not passed any orders except to the extent of adjourned the matter by six weeks.
4. Advocate for the applicant does not seriously question the view expressed by us that this Tribunal has no power to review our orders. He prays however that the application be treated as the one for rectification of errors. We then accordingly heard both sides on the application.
5. There are 13 grounds taken in paragraph 3 of the application. Of these, grounds at (a), (c), (f) to (1) and (o) were not grounds arising out of the order. They do not arise any of the grounds argued before the Tribunal. The ground in paragraph 3(a) is that the Tribunal ought to have considered that the Commissioner had clearly recorded that Mahendra Shrimankar was only person qualified and that his 21 year old son had entered into the business. The Tribunal has recorded in para 10 of its order that the only circumstance under which the age of Shrimankar was raised before the Tribunal was as a ground for leniency that he was old. The age of the applicant's son is a matter entirely irrelevant to question of leniency. The fact that the Tribunal did not go into this aspect is not an error apparent on record.
6. The ground in para 3(c), that the Tribunal erred in recording that applicant was compelled to do what he did because he could not run up enough business again itself is wrong. The Tribunal recorded this was a ground raised by the Advocate for the applicant to justify the applicant's conduct as a ground for leniency.
7. The contention that the goods had not been exported and hence are not liable for confiscation under Section 113 [paragraph (f)], cross examination of Shrimankar was not allowed [paragraph (g)], Pokharkar's statement was not considered [paragraph (h)], applicant has not done anything in relation to test report [paragraph (i)], malafide co-operation by the Customs officers [paragraph (j)], functions of Pokharkar and his producing fraudulent test report (paragraph (m)), and retraction of applicant's statement [paragraph (o)] do not figure even in the memorandum of appeal and were not argued before the Tribunal.
8. The contention in paragraph (b) is that the Tribunal had gone beyond the finding of the Commissioner in stating that the applicant had given more 100 blank shipping bills to shipping agents, since the allegation in the article of charge is only in respect of three shipping bills. It is not questioned that the applicant had given 4100 shipping bills to Amol Shipping Agents. Pokharkar in his statement referred to about 100 shipping bills which he has dealt with in the name of Eagle Transport Services, the applicant firm. The correctness of this statement has not been questioned in any of the grounds of appeal or in the oral arguments before us. The Tribunal's finding is therefore not factually incorrect or inacurrate. The Tribunal nowhere suggested that the applicant was being punished with regard to these 100 shipping bills. It had referred to these shipping bills to distinguish this case, from others where there was only contravention with regard to one or two shipping bills, in determining the quantum of penalty to be imposed. Here again therefore there is no error apparent on record.
9. The contention in grounds (d), and (e) that the Tribunal has consistently taken a lenient view in matters relating to suspension or cancellation of the CHA licence is clearly not one that leads us to conclude that there was an error apparent on record. The fact that in one case each the Tribunal and the Board were of the view that suspension was sufficient punishment, does not mean that the ratio is that this was no cause for cancellation of the order .If that were the case the provisions of the rules providing for such cancellation would be rendered ineffective. The Tribunal had considered the decision in Johan Enterprises v. C.C.E. in para 10 of its order and distinguished the facts. We do not find ourselves in a position to say that the distinction made by us was erroneous. In Johar Enterprises v. C.C.E., the fault was that of the clerk and there was nothing to show that the proprietor acted in collusion with the clerk, on the contrary the record indicated the he took step to correct the situation as soon as he knew about it.
10. These facts are clearly brought out in our order. The other decisions now cited before us were not cited earlier and the departmental representative points out that considering them now would amount to reopening the issues already heard and decided. We would however go to the extent of saying that we are not aware of a single decision of the Tribunal or a High Court that under no circumstances should a licence of a Custom House Agent be revoked.
11. We therefore do not see any existence of any error apparent on record and dismiss the application.