Customs, Excise and Gold Tribunal - Mumbai
Thakkar Shipping Agency vs Collector Of Customs on 13 May, 1993
Equivalent citations: 1993ECR545(TRI.-MUMBAI), 1993ECR675(TRI.-MUMBAI), 1994(69)ELT90(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This appeal is directed against the Order-in-Original No. S/8-29/90-Admn., dated 26-9-1991 of the Collector of Customs, Bombay, ordering, vide Regulation 21 (c) of the Customs House Agents Licensing Regulations, 1984, revocation of the temporary CHA licence issued to the appellants, a proprietary concern of Vijay Thakkar, and also forfeiting their security deposit.
2.1 The appellants, holders of temporary CHA Licence No. BC/T/89-323, were initially served with order dated 11-10-1990 of the Collector of Customs, Bombay, suspending the said licence on the ground that inquiry was contemplated against them under Customs House Agents Licensing Regulations, (hereafter referred to as the Regulations) and were then served with Show Cause Notice No. S/8-29/90-Admn., dated 13-12-1990, informing that the enquiry was being held against them vide Regulation 23 of the Regulations on the allegations that (1) they had failed to obtain proper authorisation from two passengers namely K. Gangadhar and C. Abdulla, as required under Regulation 14(a), (2) they had failed to advise those two passengers to comply with the provisions of the Customs Act, 1962, and had also failed to bring to the notice of the concerned Assistant Collector, the act of non-compliance of those provisions by those two passengers, as required under Regulation 14(d), (3) they had refused access to their records relating to the said transaction to the officers of the Central Intelligence Unit as was obligatory of them vide Regulation 14(j), (4) they had failed to maintain records as required under Regulation 14(k) and (1) and (5) they had acted in a manner unbecoming of a holder of CHA Licence inasmuch as, (a) their proprietor Vijay Thakkar was carrying on business, besides that of the Customs House Agent, of working as consolida ing agent for M/s. Rapid Shipping Agency of Dubai without entering into any legal contract and (b) he had engaged himself in attempting to smuggle contraband goods in guise of unaccompanied baggage, as was evident from the statements of passengers K. Gangadhar and C. Abdulla, and had as such rendered them liable to punishment vide Regulation 21 (c) of the Regulations (wrongly mentioned as 20(c), which does not exist).
2.2 The appellants contested the same and submitted their written reply dated 6-5-1991, contending that they had never acted as clearing agents for those two passengers and as such, there was no obligation on their part to procure any authorisation or to maintain any records in relation thereto or refusal of access thereto, to the officers. They also pleaded that uncorroborated statements of those two passengers could not be relied upon. They stated that Vijay Thakkar had retracted from his statement, and pleaded that no conclusion could be drawn on the uncorroborated statement of those two passengers. As to the alleged act of misconduct, they submitted that there was no bar against CHA acting as a Shipping Agent. They also raised a contention that Regulation 14 only specified obligations of CHA, and did not provide for taking any action in relation to any alleged non-compliance thereof. Pleading that they had no concern with the subject unaccompanied baggage, they submitted that they could not be alleged to have committed misconduct themselves within the meaning of Regulation 21 (c) of the Regulations.
2.3 Enquiry was conducted by the Enquiry Officer appointed therefor, who, vide his report dated 31-5-1991, concluded that, considering the evidence adduced, the articles of charges namely, violation of the provisions of Regulation 14(a), (d), (j), (k) and (1) and act of misconduct vide Regulation 21 (c) were duly established.
2.4 The Collector of Customs, thereupon served the notice dated 3-6-1991, enclosing therewith, the copy of the report of the Enquiry Officer, and called upon the appellants to submit their representation against the said findings.
2.5 The Appellants filed their detailed representation dated 12-8-1991 contending amongst others, that K. Gangadhar and C. Abdulla were not offered for cross-examination, though demanded and that it was not proved that Vijay Thakkar had acted as Customs House Agent for them. They also reiterated that there was no bar against CHA acting as a Shipping Agent.
2.6 The Collector of Customs, however, vide his impugned order confirmed the findings of the Enquiry Officer and ordered revocation of the temporary licence and forfeiture of the security deposit.
3.1 Dr. N.R. Kantawalla, the Ld. Adv. for the appellants, has pleaded that, ex facie, the order of the Collector is bad in law, inasmuch as, the statement of imputation only alleged violation of the obligations imposed vide Regulation 14 and for any such violation, provisions of Regulation 22 could come into play and not those of Regulation 21 and that therefore, suspension and subsequent revocation of the licence could not be ordered. He has also contended that provisions of Regulation 21(2) also were not correctly invoked. As pleaded by him, non-fulfilment of obligations laid down under Regulation 14 could not tantamount to acts of misconduct. Referring to the scheme of the Regulations, the Ld. Advocate has contended that whereas, Regulations 21 and 23 would go together, Regulation 22 is independent of that, where suspension or revocation of the licence is not contemplated. He has pleaded that therefore, the order which has been passed invoking provisions of Regulation 21 and 23, is ex facie bad in law and be set aside. In his submission, this point be determined as a preliminary point as it goes to the root of the entire proceedings.
3.2 Without prejudice to the legal contention as mentioned above, the Ld. Advocate has pleaded that even on merits, the imputations do not attribute any act of smuggling to the appellants. Further, as submitted by him, the findings are based only on the statement of Vijay Thakkar, the proprietor of the appellant firm, which has already stood retracted before the Magistrate, and also vide letter dated 21-7-1990. He has also referred to the Order No. S/14-4-325/90P, dated 8-5-1992 of the Additional Collector of Customs (P), Bombay and pleaded that the appellant's proprietor, Vijay Thakkar was also served with Show Cause Notice alongwith K. Gangadhar and C. Abdulla under the provisions of the Customs Act, 1962, and vide the said order, the Additional Collector has held him to be not liable to any penal action under the Customs Act. In his submission, when the entire set of imputations is based on the alleged abetment of those two passengers, the Order of the Additional Collector in proceeding under the Customs Act, goes to the very foundation of the imputation under the Regulations. Pleading that, even assuming that Vijay Thakkar assisted the passengers in filling in some forms, that could not be the criteria to initiate proceedings, he has referred to the decisions of CEGAT-SRB in A.N. Bhat v. Collector -1991 (55) E.L.T. 580. Referring to some other decisions as regards the evidentiary value of a retracted statement, the Ld. Advocate has pleaded that the order of the Collector is not sustainable and be set aside.
4. Mr. K.M. Mondal, the Ld. SDR, has, while supporting the order, submitted that exoneration by the Additional Collector (P) Bombay, in relation to contravention of the provisions of the Customs Act, has been on account of inadequate evidences and he has only given the benefit of doubt for not imposing any personal penalty and as such, the said order could not affect the other proceedings, where the evidences as to the alleged act of misconduct is to be examined. Further, as is submitted by the Ld. SDR, two passengers could not be offered for cross-examination because they did not respond to the summons served, and the authority conducting enquiry had no powers to enforce their attendance. In his submission, irrespective of any other thing, here is an admission of Vijay Thakkar himself, in his statement recorded on 12-7-1990, which is completely inculpatory, and even assuming that the same was subsequently retracted, his two other statements have also been recorded subsequent to the alleged retraction, which also establish his involvement, and materially corroborate the earlier statement and those statements have not been retracted. In his submission, even going by the letter of alleged retraction dated 21-7-1990, Vijay Thakkar has admitted to have obtained signature and filled in the form for claiming goods by passengers K. Gangadhar and C. Abdulla, and this fact along with the statements of Vijay Thakkar leaves no scope to take a view different from the one taken by the authority below. On the legal issues raised, the Ld. SDR has submitted that what is alleged is not a mere "non-fulfilment of obligations under Regulation 14, but the same is coupled with the allegations of misconduct, and specific allegation (vide allegation No. 5) is made as to the behaviour of Vijay Thakkar as unbecoming of a CHA and hence, the provisions of Regulations 21 and 23, have been rightly invoked. In his submission even non-compliance with the obligations under Regulation 14, would tantamount to misconduct and provisions of Regulation 22, which have considered different aspect, could not be the only provision applicable. He has pleaded that those provisions cannot be read in isolation and interpreted as excluding the contravention of conditions imposed in Regulation 14, out of the purview of Regulation 21. He has pleaded that with factual position clearly emerging out from the evidence adduced and legal position being clear, the order does not call for any interference.
6. Considering the submissions made, the prayer to decide legal issue as a preliminary issue, does not appear acceptable, firstly because the statement of imputation does not allege non-compliance with the provisions of Regulation 14 only. It also alleges acts of misconduct on account of Vijay Thakkar also acting as consolidating agent for a Dubai firm, and positive imputation is made that he is liable to action vide Regulation 21(c) of the Regulation [mis-typed as 20(c)]. As soon as provisions of Regulation 21 are sought to be invoked, the procedure laid down in Regulation 23 has to be followed. The procedure to be followed depends upon the allegations or charges levelled against the party, and not what could ultimately, be proved. Even viewing the same from different angle, while alleging non-fulfilment of the obligations under Regulation 14, the said actions are described as acts of misconduct. The word "misconduct" has not been defined in the Regulations and hence, going by the Dictionary meaning it implies, "to conduct amiss, to mismanage, wrong or improper conduct, bad behaviour, unlawful behaviour", and as such, any conduct unbecoming of a CHA, has to be taken as a misconduct. Considered from this view point, if a CHA who is under the obligation to comply with certain requirements but does not comply with them and intentionally flouts them, he could as well, be alleged to have misconducted himself. Regulation 14 specifies what a CHA should do in performance of his day to day transactions, and if he fails or omits to do so, and if such failure or omission is intentional or with some ulterior motive, then, it could certainly be alleged with a degree of justification that the CHA concerned has misconducted himself. Though 'misconduct' is not specifically defined in the Regulations, Regulation 21 (c) does mention that "any conduct which in the opinion of the Collector, renders him unfit to transact any business in the Customs station". This therefore, provides a wide panorama to include the acts of CHA which make him unfit to act as such and makes it includible in the said provisions, and non-fulfilment of obligations vide Regulation 14, can certainly be covered thereunder. The question that immediately crops up is, then for what purpose Regulation 22 is incorporated. Reading of Regulations 21 and 22 together, it however appears that the provisions of Regulation 22 are supplementary to those of Regulation 21. What Regulation 22 provides is that, without recourse to the extreme penal provisions in Regulation 21, if it is found that non-compliance of any obligations of Regulation 14, are restricted to, or are in relation to his working in a particular section, then, instead of revoking CHA licence outright by way of penalty specified in Regulation 21, the CHA may be prevented from acting in that particular section. Provisions of Regulation 22 are not meant to be read in isolation but in conjunction with the other provisions. The word "Notwithstanding" appearing in Regulation 22, has therefore to be read accordingly. The deliberations on the point however, remain merely academic here, as the Notice to Show Cause, and particularly Item (5) of the said notice, clearly attribute act of misconduct, other than those relating to Regulation 14. From all these, the legal contention raised does not appear sustainable, and has to be rejected.
7. Considering the appeal on merits, there are two types of allegations against the appellants, one in relation to non-fulfilment of obligations under Regulation 14, where what is alleged and held as proved by the authority below is non-compliance with the provisions in clauses (a), (d), (j), (k) and (1) and the second is of Vijay Thakkar having acted as consolidating agent for M/s. Rapid Shipping Agency of Dubai, and having abetted two passengers in attempting to smuggle the goods under T.R. Rules.
8. Going by the statement of imputation. Article Nos. 1,2,3 and 4 of the charges relate only to what the appellants have allegedly done in relation to two passengers namely K. Gangadhar and C. Abdulla. Even second part of the Article No. 5 of the charge relates to his alleged dealing with those two passengers whereas the first part of the charge in Article No. 5 in the statement of imputation, relates to Vijay Thakkar having acted as consolidating agent for M/s. Rapid Shipping Agency at Dubai. Thus, there is no allegation for the purpose of holding the present inquiry against the appellants that they had been habitually or repeatedly indulging in importing or assisting in importing the goods unauthorisedly in relation to other passengers and as such, were attempting to smuggle or have actually smuggled the goods into India, under the guise of clearing personal baggage of other persons under TR Rules. With no such general allegation made, the entire case has to be examined in relation to the appellant's action vis-a-vis those two passengers alone, besides examining as to whether the appellants have misconducted themselves by acting as consolidating/shipping agents for M/s. Rapid Shipping Agency, Dubai.
9.1 These two passengers were also served with notices to show cause, in relation to the contravention of the provisions of the Customs Act, and Vijay Thakkar was also made a co-noticee in those matters. From what has been produced by the appellants here, in the proceedings against K. Gangadhar, though the goods have been ordered confiscation and K. Gangadhar is also imposed with personal penalty, as is evident from the order No. S/14-4-325/90P, dated 13-5-1992, Vijay Thakkar has not been imposed any penalty, and the Additional Collector passing the said order has observed that:
"he has not been implicated in the case by either Shri Kutta Gangadhar or Shri Mohd. Hanif K. Elahi inasmuch as neither of them have stated that Shri Vijay Thakkar was to assist them in the clearance of the goods with the knowledge that the goods were illegally imported, Shri Vijay Thakkar is a Shipping Agent and was issuing the delivery order on behalf of M/s. Rapid Clearing and Forwarding of Dubai, and apart from issuance of the delivery order which he presumably did in the normal course of his business, there is no independent evidence to prove that Shri Vijay Thakkar did any overt act towards the clearance of the said goods."
Though of course, thereafter, the Additional Collector has observed that therefore, he was giving benefit of doubt and was not holding him liable for penalty, the observations made by the Additional Collector adjudicating in the proceedings under the Customs Act, which have a direct bearing on some of the imputations here, cannot be ignored. An enquiry was got done at the Registry of this Bench, as to whether appeals have been filed against the said order, and it is revealed that, whereas K. Gangadhar has filed an appeal being C/478/92-Bom., the department has so far not come in appeal, and the presumption would be that the department has accepted the said order. Be it however, made clear that the enquiry with the Registry has been made after the hearing of the arguments in the appeal, and hence the SDR has not been confronted with this position so as to enable him to provide any explanation and as such, this fact of non-filing of the appeal by the Department has not been taken into consideration to base any conclusion on the merits of the case and reference thereto is made as the statement of fact emerging from the record of the Tribunal. An uncontroverted fact however remains that in the proceedings under the Customs Act, Vijay Thakkar, the proprietor of the appellant firm, has been held as not involved.
9.2 No evidence however is brought on record to show the final outcome of the adjudication against C. Abdulla, though it is reported during the course of arguments that he has claimed the ownership in the goods. With no evidence in that regards, however, the same cannot be considered.
10. For the purpose of holding the first set of articles of imputation, namely those relating to two passengers, both, the Enquiry Officer and the Collector have relied upon the statement of Vijay Thakkar dated 12-7-1990, which is alleged to have been retracted by him vide his letter dated 21-7-1990 and have sought corroboration thereto from the statements of those two passengers also recorded vide Section 108 of the Customs Act. Undisputedly, neither of these two passengers have been examined as witnesses in those proceedings nor have they been offered for cross-examination.
11. For the purpose of holding enquiry under the Regulations, specific procedure has been provided for in Regulation 23. When specific procedure is provided for, the general procedure provided for, for holding adjudication proceedings under the Customs Act, would not stand attracted. Clauses 3 and 4 of Regulation 23 of the Regulations read thus : -
"(3) The Assistant Collector of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the enquiry in regard to the grounds forming the basis of the proceedings and he may also put any question to any person tendering evidence, for or against the Customs House Agent, for the purpose of ascertaining the correct position.
(4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings and where the Assistant Collector of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing."
From this, therefore, it is very clear that for the purpose of making use of any oral evidence, in these proceedings, such evidence has to be recorded by the Enquiry Officer, and the person giving such oral evidence has to be offered to the delinquent for cross-examination. There does not exist any provision which authorises use of statement recorded vide Section 108 of the Customs Act as an evidence here. True, statement recorded vide Section 108 of the Customs Act, has been given some special status as to its acceptability in relation to the proceedings under the Customs Act but there, no provision like the one found in clause (3) of Regulation 23, exist for the purpose of adjudication under the said Act. On the contrary, notice under Section 124 of the Customs Act, has to be served, based on evidence, which also includes the statements recorded under the provisions of Section 108 of the Customs Act, if recorded and the other side has an option to ask for production of such persons for cross-examination. Here, on the other hand, both recording of evidence and offering the persons for cross-examination has been made mandatory. The use of the word "shall" in clause (4) of Regulation 23, leaves no scope to hold otherwise. Non-examination of these two passengers and non-offering them for cross-examination to the delinquent, therefore, makes their statements recorded in other proceedings, not admissible. There is also no allegation that these two passengers have been intentionally kept away by the appellants and the only ground for non-examination mentioned is that they did not respond to the summons. It is true that there is no power in such authorities to enforce their attendance, but if their presence cannot be secured, their evidence has to be discarded and cannot be used in any manner. Any use of their statement would directly violate the provisions of Clause (4) of Regulation 23. The use of the statements of K. Gangadhar and C. Abdulla, even for the purpose of corroborating what Vijay Thakkar has said, is therefore not permissible. The statements obviously cannot fall within the category of "documents."
12. That therefore, leaves only the statement of Vijay Thakkar, recorded on 12-7-1990. Vide his letter dated 21-7-1990 Vijay has retracted the same, and the statements recorded subsequently on two occasions, do not indicate that he has even re-confirmed his earlier statement. Assuming, that being a statement of the delinquent himself, recorded by a competent authority, the same can be made use of in drawing conclusion, with his retraction thereof, the same ought to get corroboration on material particulars.
13. Instead of examining his statement and attempt at seeking corroboration from the other evidence on record, it would be more convenient to take up each individual charge, examine what Vijay Thakkar has admitted in his statement dated 12-7-1990, in relation thereto, and examine whether any corroboration on material particulars is available.
13.2 The first article of charge is that he has acted as CHA for those two passengers without obtaining proper authorisation. In his statement of defence (reply to Show Cause Notice) the appellants have denied having worked as CHA for these two passengers. In his statement dated 12-7-1990, Vijay Thakkar does state that he had received bills of Lading for baggage for these two passengers and was to clear the goods. However, till the time of detection, he had not filed any Bill of Entry for those persons. On the contrary, both the persons themselves were sent to Nahva Sheva port to claim and collect their baggage. By guiding them and make them sign some necessary documents in his office, would not by itself, mean that he was to act as CHA for them. The Tribunal has, in A.N. Bhat v. Collector - 1991 (55) E.L.T. 580 held the view that mere signing of some papers at CHA office would not prove involvement of CHA. There is no other evidence in the form of oral testimony of the concerned officer to prove that Vijay Thakkar acted or represented to be acting as CHA for them. As is reflected from what is mentioned in the order of the Enquiry Officer, one Mr. N.V. Chacko has stated that Baggage Declaration Forms were filed as "self" and not under authorisation. Helping some persons and undertaking to work as an agent are two distinct things. Helping a person in un-authorisedly clearing the goods which may tantamount to abetment in the act of smuggling, may render that person liable as an abettor, but by itself it cannot be said that he acted as CHA for them. Further, as already discussed herein above, is so far as proceedings against K. Gangadhar under the provisions of the Customs Act, this Vijay Thakkar is held to have not acted any further than issuing delivery order. Thus, no supporting evidence exists that Vijay Thakkar acted as CHA for these passengers. No document is also produced before the authority showing him to be acting as CHA on behalf of both or either of those two passengers. Under the circumstances, with no corroborative evidence, it cannot be said that Vijay Thakkar was working as CHA for those two passengers, and when he is not proved to have acted as CHA, the question of obtaining any authorisation does not arise. Even taking the statement dated 12-7-1990 at its face value, there is no clear admission that he was to act in his capacity as CHA and was to procure the consignments for and on behalf of the two passengers. As indicated above, that may be a relevant statement for adjudication under the provisions of the Customs Act, but cannot be construed to attribute non-compliance of Regulation 14(a).
13.3 The second ground alleged is a non-compliance with the provisions of Clause (d) of Regulation 14, namely not advising the client and of non bringing the matter to the notice of the authority. The only evidence on record that now remains, is the retracted statement of Vijay Thakkar. Here also with the finding of the Additional Collector adjudicating in the proceedings against K. Gangadhar, Vijay Thakkar is not held to have played any role except issuing the delivery order. Coupled with the retraction, therefore, there is a finding from a competent authority that he is not proved to have played active role. On the contrary, the authority adjudicating under the Customs Act, has held that "there is no independent evidence to prove that Shri Vijay Thakkar did any overt act towards the clearance of the said goods". With no other evidence, and with the finding from a competent authority as above, it is not possible to conclude merely on the retracted statement of Vijay Thakkar that he has violated these provisions and with that the benefit of doubt would go in favour of the appellants. When Vijay is held to have no knowledge of illegality in import, question of alarming the Customs authority may also not arise.
13.4 The third allegation is that the appellants refused an access to their record and contravened Regulation 14(j). When however the appellants are not proved to have acted as CHA for these two passengers, there could be no question of their maintaining records. Even then, Vijay Thakkar has categorically stated that all his records were seized by R and I Branch during the search. The Enquiry Officer however, negatived the said plea by simply observing that on enquiry with the said Branch, the same is found to be not true. Sitting as an adjudicating authority, he was supposed to observe certain procedures. He ought to have summoned someone from that Branch, with the record of search and seizure at the appellant's premises. Such a slipshod approach is not warranted when proceedings with grave consequences resulting in cancellation of licence, are to follow. There is thus no evidence to show that the appellants deliberately withheld the records from being inspected by the investigating agency. Search and seizure of whatever items seized, must have been under a panchnama. That is not brought on record. Not only that, even a letter from R & I to that effect does not seem to have been procured. In that case, the said allegation cannot be held to have been established.
13.5 The fourth allegation is regarding failure to maintain records as contemplated in Regulation 14(k) and (1). When however, the appellants are not proved to have acted as CHA for the two passengers, the allegation could not survive.
13.6 The last in the said set of allegations is that the appellants abetted those two passengers in smuggling the goods. That was precisely the issue before the Additional Collector adjudicating and competent to adjudicate on the issue and the same has been decided in favour of the appellants. The authority holding the enquiry under the Regulations, as to whether on the alleged act of misconduct, the licence given should or should not be cancelled, has to consider the outcome of the enquiry by the authority competent to decide, as to whether the act as alleged, which according to the authority here constitutes a misconduct, is really proved, and when the very occurrence of that act is held as not proved, the consequential action could not survive. It is true that this authority acting under the provisions of the Customs Act has mentioned that he was giving a benefit of doubt, meaning thereby that he was not giving a finding of total innocence, but men, there ought to be some independent evidence, coming on record, to establish the involvement. Except the retracted statement of Vijay Thakkar, there appears no evidence adduced before the Enquiry Officer in this regard. The same statement of Vijay Thakkar was also before the said authority, who also had the evidence from the passenger. When in spite of that, the said authority did not consider that evidence sufficient to implicate Vijay Thakkar, to implicate him as an abetter, the finding of the Enquiry Authority and the Collector in these proceedings cannot be upheld as justified. The position could have assumed some different angle, if some additional evidence was procured. With the position as it exists, however, the said article of charge also cannot be held to have been established.
14. In the second set of allegation, the appellants though holding CHA licence, are reported to have acted as consolidating agents for a firm at Dubai. Going by the Regulations, there does not appear any bar against CHA also acting as Shipping/Consolidating Agents. On the factual side, this position is admitted. With no bar existing, it cannot be held that the appellants acted in a way unbecoming of the CHA. While deciding this point against the appellants, an observation is made that there was a change in constitution and that was not reported as contemplated in Regulation 16. The said Regulation however refers to change in constitution of the firm, meaning that if there is a change in partnership, or conversion of a proprietory firm into partnership or vice-versa. That does not mean that if the licenced CHA also undertake some allied business he has to notify the same. Had there been a specific bar in CHA undertaking any other occupation, the allegation would have assumed importance and with admission on their part, could tantamount to an act of misconduct. That however being not the position here, the same cannot be construed as an act of misconduct.
15. In the result, the findings of the authority below cannot be sustained and are set aside. Consequent order cancelling the licence is also set aside and the licence is ordered to be restored.
R. Jayaraman, Member (T)
1. While subscribing to the conclusions recorded by my learned brother, I would deem it proper to highlight only on the following aspect.
2. On the very same facts, the appellants were proceeded against under Section 112 of the Customs Act, but the proceedings for penalty have been dropped. If penalty has been sustained, a view is possible that a person, who has committed contravention of the provisions of the Customs Act and has rendered himself liable to penalty, can be said to have per se committed a misconduct, unbecoming of a Customs House Agent. Here, where penal proceedings under the Customs Act have been dropped and there is no appeal from the Department against that order, we are lead to take it that the appellants have not contravened any of the provisions of the Customs Act. Though the proceedings under the Customs Act and the proceedings under the CHA Regulations are independent, in my view, findings given under the Customs Act on the same facts have an important bearing even for adjudging misconduct under the Customs House Agents Regulations and this cannot be totally ignored. With this position, when I approach the allegations of misconduct sought to be confirmed, they boil down only to analysing his misconduct from the point of view of his abetment in smuggling. When this allegation is dropped by a competent authority and the same has not been challenged by the Department before us by way of appeal, we are faced with serious constraints to go into this aspect, overlooking this finding. Hence I agree that appeal is to be allowed.