Rajasthan High Court - Jaipur
Commissioner Of Customs Jaupur vs M/S Naresh Kumar Meena on 27 July, 2017
Bench: K.S.Jhaveri, Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Custom Appeal No. 1 / 2009
Commissioner of Customs Jaipur, New Central Revenue Building ,
Statue Circle, Jaipur-302 005.
----Appellant
Versus
M/s Naresh Kumar Meena, CG/5/13, Nehru Place, Tonk Road,
Jaipur
----Respondent
_____________________________________________________ For Appellant(s) : Mr. Siddharth Ranka. For Respondent(s) : Mr. Kuldeep Sharma for Mr. Mahesh Gupta. _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Judgment 27/07/2017
1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the tribunal has allowed the appeal of the assessee.
2. This Court while admitting the appeal on 11.05.2009, framed the following substantial questions of law:-
"Whether the Tribunal is legally correct in setting aside the revocation of CHA Licence of the appellant No.3 in the circumstances when there is gross violation of CHA Licensing Regulations, under which the said licence was granted, on the part of the CHA himself?"
3. The matter was placed before this court 06.02.2017 where one of us (Hon'ble Mr. Justice K.S. Jhaveri) was also a party. Time and again, at the request of counsel for the respondent the matter was adjourned i.e. 15.02.2017, 31.05.2017 and today also (2 of 5) [CUSTA-1/2009] counsel for the respondent present in the court is stated that respondent is co-operating.
4. Counsel for the appellant has contended as under:-
"1. Thus, it appeared that the' CHA firm managed the signature of the exporter, without having authorization' to do so and furnished false statement about the status of the exporter.
2. That in an another case, during the surprise checks at the ICD Concor Jaipur it was observed that the 'license of Shri N.K. Meena was being misused by M/s. IPG Cargo Services, Jaipur. The name of the CHA was being used just for name sake and actual clearance work was being done by the employees of M/s. IPG Cargo services. Necessary' investigation was carried out in the case from which it appeared that Shri N.K. Meena proprietor of M/s. Naresh Kumar Meena, CHA had 'allowed M/s. IPG Cargo Services, Jaipur to transact CHA business by using his CHA license against consideration of Rs.400/- + Services Tax per container. Further it appeared that Shri N.K. Tax per container. Further it appeared that Shri N.K. Meena got issued 'G' Card to I.P. Gupta and 'H' Cards to Shri Kishan Singh Kishan Singh Choudhan and Shri Harish Kumar Sharma by fraudulent means, declaring. Them as his own employee, whereas in fact Sh. I.P. Gupta was proprietor of M/s. IPG Cargo Services and other two were employees of M/s. IPG Cargo Services respectively."
5. He relied upon the decision of the Supreme Court in Commissioner of Customs Vs. K.M. Ganatra & Co. reported in 2016 (332) E.L.T. 15 (S.C.), wherein it has been observed as under:-
2016 (332) E.L.T. 15 (S.C.) "14. Relying on the statutory provisions, it is submitted by learned Counsel for the Respondent that the tribunal has jurisdiction to confirm, modify or annul the decision.
There can be no cavil over the issue that the tribunal can dislodge or confirm or modify the order. The vesting of jurisdiction with the tribunal by the statute is beyond any pale of controversy. The dispute pertains to exercise of such jurisdiction. When a jurisdiction is exercised, it has to be exercised in accordance with law, regard being had (3 of 5) [CUSTA-1/2009] to the factual matrix of the case. The tribunal having been conferred the power to modify the order, restricting the period of revocation would definitely come within the sweep of the said power. The issue would, as stated earlier, be whether the said jurisdiction has been properly exercised in the case at hand. On a perusal of the order passed by the Commissioner, it is clearly perceptible that there has been number of violations by the Respondent. The enquiry report which formed the plinth of the order of the Commissioner demonstrates that by virtue of the transfer of the licence in contravention of the Regulations, on many an occasion, immense financial loss has been caused to the revenue. As the factual matrix would exposit, it is a serious violation. The misconduct reflects a chain of acts. In such a situation, we are disposed to think that the discretion exercised by the tribunal is inappropriate.
15. In this regard, Ms. Mohana, learned senior Counsel for the Appellant, has placed reliance on the decision in Noble Agency v. Commissioner of Customs, Mumbai MANU/CM/0012/2002 : 2002(142) E.L.T. 84 (Tri. - Mumbai) wherein a Division Bench of the CEGAT, West Zonal Bench, Mumbai has observed:
The CHA occupies a very important position in the Custom House. The Customs procedures are complicated. The importers have to deal with a multiplicity of agencies viz. carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through these agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the Customs. A lot of trust is kept in CHA by the importers/exporters as well as by the Government Agencies. To ensure appropriate discharge of such trust, the relevant Regulations are framed. Regulation 14 of the CHA Licensing Regulations lists out obligations of the CHA. Any contravention of such obligations even without intent would be sufficient to invite upon the CHA the punishment listed in the Regulations....
We approve the aforesaid observations of the CEGAT, West Zonal Bench, Mumbai and unhesitatingly hold that this misconduct has to be seriously viewed."
5.1 The decision of Gujarat High Court in OTA Kandla Pvt. Ltd.
Vs. Union of India reported in 2011 (269) E.L.T. 457 (Guj.) wherein it has been held as under:-
2011 (269) E.L.T. 457 (Guj.) "9. Having regard to the rival contentions raised by the (4 of 5) [CUSTA-1/2009] learned Counsels for the parties and to the orders passed by Respondent Authorities, it clearly transpires that both the Authorities i.e. the Commissioner of Customs and the CEGAT, after thoroughly discussing the evidence as regards the charges of mis-conduct levelled against the Petitioner, had come to the conclusion that all the said charges were duly proved. It is pertinent to note that though the two Members of CEGAT had differed on the issue of imposition of punishment i.e. revocation of licence, both had concurred with the findings on the establishment of charges against the Petitioner inter alia that the Petitioner had transferred its licence by sub-
letting the same to M/s. Prabhat Kiran Mariners in violation of Regulation 13 of the said Regulations and that the Petitioner did not maintain the statutory records and thereby contravened Regulation 19 of the said Regulations and that the Petitioner obtained custom pass for the persons who were not its employees and permitted the employees of M/s. Prabhat Kiran Mariners to use the same before the Custom Authorities for its monitory gain, in violation of Regulation 14 (b) and 20(6) of the said Regulations. The charges against the Petitioner that the said imported goods of the Importer were removed through the West Gate instead of North Gate of the Kandla Port in contravention of Regulation 14(a), without obtaining authorization from the Importer in respect of the consignment, were also held as proved. These findings of the Respondent Authorities on the charges levelled against the Petitioner, are arrived at by the Respondents after considering all materials on record. The learned Advocate Mr. Dave for the Petitioner has failed to point out any error in the said findings. Even otherwise, the said findings being findings of facts, this Court exercising writ jurisdiction is not inclined to re- evaluate the evidence or sit in appeal over the said findings.
14. In view of the above principles laid down by the Hon'ble Supreme Court in various judgments it clearly transpires that the judicial review of administrative action or of proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable, irrational or suffering from any procedural impropriety, and that the High Court in exercise of jurisdiction under Article 226 or 227 should not interfere with the legal orders of Administrative Authorities. So far as the facts of the present case are concerned, as stated hereinabove, Respondent No. 3 - the CEGAT has upheld the order of Respondent No. 2, revoking the licence of the Petitioner as CHA on the ground of Petitioner having committed breach of statutory regulations and the misconduct by misusing its licence. In the opinion of this Court, once the decision of the Respondent Authorities that the Petitioner committed violation of statutory regulations and the misconduct is found to be within the (5 of 5) [CUSTA-1/2009] legal parameters, all the legal consequences as a result of such violation and the breach have to follow. The case of the Petitioner being the case of contravention of said regulations and misuse of license as CHA, the Respondent Authorities have rightly revoked the license of the Petitioner. The said decision having been arrived at by the Respondents, after taking into consideration all relevant material and the said Regulations, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational. Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality. The Petitioner having failed to point out any perversity or unreasonableness on the part of Respondent Authorities warranting judicial intervention, this Court does not find any merits in the present petition."
6. Taken into consideration the counsel for the appellant contended that the view taken by the Tribunal is required to be reversed in view of the licence which was granted by the competent authority to particular person with a particular purpose to be utilized by the same in sub-delegation to any person is required to be deprecated.
7. In view of the observation made by the Supreme Court as referred hereinabove the order of the Tribunal is quashed and set aside. The issue is answered in favour of department against the assessee.
8. The appeal stands allowed.
(INDERJEET SINGH)J. (K.S.JHAVERI)J. Mohit Grover Sr. No.90