Customs, Excise and Gold Tribunal - Mumbai
Shrita Impex Pvt. Ltd. vs Commissioner Of Customs on 18 February, 1998
Equivalent citations: 1999(112)ELT978(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. This order is against the order of the Commissioner of Customs suspending the Custom House Agents licence granted to the appellant.
2. The reason for the suspension of the licence indicates that the appellant sublet its licence to partner of M/s J.B. Cargo Forwarders. The order narrates that the partner, J.B. Vaz had admitted that he received export cargo clearance work in his firm's name and got it cleared through the appellant and that his firm charges the bill for export clearance to the exporter and not to the appellant. So far the appellant had not charged him for work done from April, 1997 onwards. The date of his statement is not known but is apparently some time in August, since the Commissioner's order was passed on the 19th September. The order narrates that letters of authority relating to clearances from two exporters namely Asha Handicraft Association and Greaves Ltd. for clearance of export cargo were addressed to J.B. Cargo Forwarders and not to the appellant and that the appellant's director could not produce authority letter for clearance of export cargo till the date of the order authority letters from these two firms although he promised to produce them on 2nd July, 1997.
3. Advocate for the appellant contends that the authority letter was subsequently produced before the Commissioner but could not explain why the letter could not be produced for two months after they were asked for, if they were actually in the appellants possession. He contends that in the circumstances that the alleged wrong doing by the appellant is not sufficient, even if correct to justify immediate suspension in terms of Regulation 21 of the Custom House Regulations and that the procedure contemplated in giving opportunity to the agent by issue of notice should be followed.
4. The Departmental Representative contends that the failure to produce the authority, and the tentative finding of the Commissioner that the licence has been sublet, is grave enough to justify immediate suspension. The Custom House Agent, by the very definition in the regulation, must have authority. She cites the decision of this Tribunal in P.S. Bedi v. C.C. -1992 (59) E.L.T. 293.
5. Prima facie the statements attributed to J.B. Vaz and the failure of the appellant to produce letters of authority, two months after being asked to do so appear to support the Commissioner's view the basis for the suspension that the appellant had sub let the licence. However the Commissioner's order gives no dates as to the clearance. We are not in a position to say whether the transaction between the appellant and J.B. Vaz were recent or not although there is some indication that it commenced in April, 1997. No doubt it is of .-.great importance that the Custom House Agent must have written authority from his client; failure to do so as the Departmental Representative says could result in a situation where the agent could be made use of by unscrupulous persons who could later demand having authorised the agent. However her contention that it is a condition for grant of licence that the agent must have authority is not justified by reading the regulations. The specific insistence of producing authority in the regulations is merely nothing more than emphasis of the principle that an agent must have authority to represent his principal. The fact also remains that so far, despite nearly four months, no action has been taken to issue notice to the appellant for proposing regulation. The Departmental Representative stated that investigation had taken time. We are unable to appreciate what reason the delay was. The Commissioner's order of suspension itself indicates the essential facts.
6. The judgment in P.S. Bedi & Co. v. C.C. -1992 (59) E.L.T. 293 cited by the Commissioner supports the view that the provision for cancellation of suspension of a licence without notice can be resorted to in appropriate cases. This however is not the issue in this appeal. It is clear from reading Regulations 17 and 21, that the regulation contemplated in the normal course that the licence must not be suspended except by following the procedure specified of issue of notice, opportunity for hearing etc. It is only in exceptional cases that suspension without licence under Regulation 21 is justified. We are not satisfied that this was one of those cases where recourse to this action was justified. The facts of the case did not require such urgency that the passing of a month or so within which notice for suspension could have been issued and the Custom House Agent heard and, thereafter if necessary order passed for suspension under Regulation 17 could not have been aforded.
7. Considering all the factors that we have discussed, we are of the view that the suspension should be set aside and revoked and the licence restored. The Commissioner however is at liberty to take steps to suspend the licence in terms of Regulation 17 if he considers that appropriate.
8. Appeal allowed. Impugned order set aside.