Custom, Excise & Service Tax Tribunal
Vishwanath Shipping Agency vs Cc (General) Mumbai on 6 November, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/1161/2008
[Arising out of Order-in-Original No: 40/2007 dated 24th December
2007 passed by the Commissioner of Customs (General), Mumbai.]
For approval and signature:
Hon'ble Shri C J Mathew, Member (Technical)
Hon'ble Shri Ajay Sharma, Member (Judicial)
1. Whether Press Reporters may be allowed to see the
Order for publication as per Rule 27 of the : Yes
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of
CESTAT (Procedure) Rules, 1982 for publication : Yes
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
: Seen
of the Order?
4. Whether Order is to be circulated to the
: Yes
Departmental authorities?
Vishwanath Shipping Agency ... Appellant
versus
Commissioner of Customs (General)
Mumbai ...Respondent
Appearance:
Shri HR Shetty, Advocate for appellant Ms PV Sekhar, Joint Commissioner (AR) for respondent C/1161/2008 2 CORAM:
Hon'ble Shri C J Mathew, Member (Technical) Hon'ble Shri Ajay Sharma, Member (Judicial) Date of hearing: 11/07/2018 Date of decision: 06/11/2018 ORDER NO: A/ 87851 / 2018 Per: C J Mathew This appeal has been preferred by M/s Vishwanath Shipping Agency Pvt Ltd (CHA no. 11/216) against revocation of license issued under the then prevailing Customs House Agents Licensing Regulations, 1984 and forfeiture of security deposit under regulation 21 of the said Regulations following the procedure prescribed in regulation 23 of the Regulations. Consequent upon detection of shipment of goods by M/s Aar Cee International filed through the licencee in June 2002, the license was suspended and the charge-sheet issued to the licensee culminated in impugned order-in-original no.
40/2007 dated 24th December 2007.
2. The prescribed enquiry found the five charges levelled against the licensee to be proved and, after grant of opportunity of responding and to be heard in person, the revocation and forfeiture was ordered by Commissioner of Customs (General), New Custom House, Mumbai. The appellant was found to have breached regulation 14 (a) C/1161/2008 3 requiring possession of authorisation from the exporter, of regulation 14(b) by operating through an unauthorised person, of regulation 14(d) mandating that the client to be advised to comply with procedures and, in the event of non-compliance, reporting such failure to the proper authority, of regulation 14(l) by filing improper documentation and of regulation 13 by allowing the license to be sub- let.
3. Though elaborate grounds have been set out in the appeal, Learned Counsel for appellant, in the oral submissions during the hearing, sought relief pleading for leniency and on ground of equity by drawing upon certain decisions that allowed the restoration of license after a reasonable interval and set aside the extreme penalty for not being commensurate with alleged breach. In SP Pawar & Sons v. Commissioner of Customs (Gen), Mumbai-I [2009 (247) ELT 562 (Tri-Mum)], the Tribunal took note that two of the three charges remained unproven and that the lone charge held as proved was merely technical for which the penalty of forfeiture would be commensurate; Hon'ble High Court of Bombay did find this decision of the Tribunal to be proper. In Commissioner of Customs (General) v. SS Clearing & Forwarding Pvt Ltd [2011 (263) ELT 353 (Bom)], the penalty of forfeiture was considered sufficient in the light of a finding of contributory default on the part of officers of customs. In Shri Venkatesh Shipping Services Pvt Ltd v. Union of India [2013 C/1161/2008 4 (287) ELT 266 (Bom)], it was considered that the interest of justice had been met by the bar on operation of the license for a period of almost five years. In Commissioner of Customs (General) v. Sainath Clearing Agency [2015 (326) ELT 548 (Bom)], the Hon'ble High Court of Bombay approved, in the peculiar circumstance of that case, of the decision of the Tribunal to restrict the period of revocation of the license. In Manilal Patel Clearing and Forwarding Pvt Ltd v. Commissioner of Customers [2013 (294) ELT 472 (Tri-Mumbai)], it was held that the penalty visited upon the appellant should not be any different from that imposed, in similar circumstances, upon other similarly placed agents. Likewise in Damodar J Malpani v. Collector of Central Excise [2002 (146) ELT 483 (SC)], the Hon'ble Supreme Court was inclined to find fault with the Tribunal for having disregarded uniformity of treatment.
4. Even after a careful perusal of the different decisions supra, we find it difficult to accept the contention of Learned Counsel that the facts and circumstances in which the present appellant has had its license revoked were such as prevailed in the cited decisions. The only issue that appears to have some relevance is the lapse of time since the revocation of the license as far back as December 2007. We, however, find ourselves constrained by the absence of any statutory provision for limited revocation of a license. It is the authority competent to issue the license that bears administrative responsibility C/1161/2008 5 for the jurisdiction in which the licensee is allowed to operate; the issue of a license, extension of such licences and revocation thereof are expressly provided for in the said Regulations. Whether there are any restrictions on receiving of a fresh licence is not apparent but the Regulations certainly do not provide for partial revocation and does not envisage a rollback except in circumstances of the original revocation being invalidated.
5. It is also seen that the facts in decisions cited by Learned Counsel are not mirrored here wherein all the five charges have been held as proved in the statutory enquiry preceding the revocation and all of those taken together demonstrate abdication of the responsibilities and duties that are inextricably linked with the grant of license. Any leniency, in the circumstances, would not only dent the administrative authority of the licensing authority but also may encourage a casual approach by other licensees.
6. We are convinced by the submissions of Learned Authorised Representative that the operation and control of Customs House Agents are best left to the judgement of Commissioner of Customs and that no intervention in the magnitude of penalty, save in obvious cases of being disproportionate or for violation of principles of natural justice and breach of procedure as prescribed in law is warranted. The decision of Hon'ble High Court of Bombay in Commissioner of C/1161/2008 6 Customs (General) v. Worldwide Cargo Movers [2010 (253) ELT 190 (Bom)] lays down the scope of intervention thus '28. In our view, the Tribunal has committed a grave error in interfering with the decision of a domestic authority. In a departmental proceeding one has to see whether the principles of natural justice are followed and the findings are justified from material on record. Once both these aspects are satisfied if an outsider Tribunal interferes, its findings and order will be improper and perverse which is what has happened in the present case. Similarly when one comes to the disciplinary measures, one must not lose sight of the fact that the appellant-Commissioner of Customs is responsible for happenings in the Customs area and for the discipline to be maintained over there. If he takes a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or his employees. The decision is best to be left to the disciplinary authority save in exceptional cases where it is shockingly disproportionate or mala fide. That is not the case here.
29. In the circumstances, we allow Customs Appeal No. 37 of 2006 filed by the appellant-Commissioner of Customs since the CESTAT was not justified in setting aside the revocation of the CHA licence in the facts and circumstances of the case and on the material on record. The order of the CESTAT setting aside the order of the appellant-Commissioner of Customs was clearly perverse in law. Appeal No. 37 of 2006 is, therefore, allowed. The order dated 4-4-2006 passed by the CESTAT is set aside and the order dated 17-1-2006 passed by the appellant-Commissioner of Customs is restored.' C/1161/2008 7
7. The Hon'ble Supreme Court too echoes the scope of intervention by other authorities in matters pertaining to Customs House Agents thus
4. 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 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 [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 Customs House. The Customs procedures are complicated. The importers have to deal with a multiplicity of agencies viz. carriers, custodians like BPT C/1161/2008 8 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.' in Commissioner of Customs v. KM Ganatra & Co [2016 (332) ELT 15 (SC)].
8. In view of the elaborate findings in the impugned order, the absence of any controverting thereto on the part of the appellant and the decisions cited supra, we find no reason to interfere with the impugned order. The appeal is dismissed.
(Pronounced in Court on 06/11/2018)
(Ajay Sharma) (C J Mathew)
Member (Judicial) Member (Technical)
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