Custom, Excise & Service Tax Tribunal
Aramex India Pvt. Ltd vs Commissioner Of Customs on 16 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. C/86300/16 (Arising out of Order-in-Original No. MUM-CUS-(AP-II)ASC/02/2016-17 dated 26.04.2016 passed by Commissioner of Customs, Airport Special Cargo, Mumbai) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication 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 Departmental : Yes authorities?
Aramex India Pvt. Ltd.
Appellant Vs. Commissioner of Customs Airport, Mumbai Respondent Appearance:
Shri Atul Nanda Sr.Advocate with Shri Mayank Jain, Advocate for appellant Shri M.K. Sarangi, Jt. Commr (AR) for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 16.09.2016 Date of Decision: 29.12.2016 ORDER NO..
Per: M.V. Ravindran When this matter was called out learned D.R. submits that he is seeking time i.e. 4 weeks adjournment for the Revenue to argue the matter as some information needs to be obtained from the Commissioner. It is also his submission that they had insufficient time for preparing the arguments. This is despite application for early hearing of appeal having been allowed on 27.07.2016.
2. We find from the records that this matter was listed for disposal on 04.08.2016 on which date the Hon'ble Member Shri Ramesh Nair, Member (Judicial) recused from the matter and the matter got listed before this Bench on 24.08.2016. Due to paucity of time, the matter got adjourned. The said matter was mentioned by one of the learned Counsel holding for Sr. Advocate Shri Atul Nanda seeking that it be heard at earliest as the issue relates to revocation of courier licence and a matter of livelihood is involved. Considering the request made by the learned Counsel, as also the facts, the matter was listed on 02.09.2016 and learned Departmental Representative was informed about the same. Shri Atul Nanda, learned Sr. Counsel appears and accordingly we take up the matter for disposal; directing the learned D.R. to note down the arguments with a direction to argue his case on any day convenient to him.
3. Learned Counsel submits that the issue involved in this case is regarding revocation of courier licence of appellant. It is his submission that the entire issue started with the wrong doing of two of their employees in clearance of silver jewellery item in the guise of courier packages. It is the submission of the learned Counsel that they were issued the show-cause notice at the intervention of Hon'ble High Court of Bombay on a writ filed by them; vide order dated 08,02.2016 the lower authorities were directed to issue show-cause notice and adjudicate the same in accordance with law which was done so, hence this appeal.
3.1 Learned Sr. Counsel would take us through the show-cause notice No. C-2/2015 APSC dated 22.04.2015 which is Exhibit at page No. 61. It is submitted that the show-cause notice was issued by the Principal Commissioner of Customs, Airport Special Cargo Commissionerate, Mumbai under Section 124 of the Customs Act, 1962. He would read the contents of the show-cause notice, more specifically the summary of investigation which is at page No. 16, running page 75 of the appeal memo. He would take us through the allegations and modus operandi as has been described in the show-cause notice. He would also take us through the various Sections which has been cited in the show-cause notice and also towards paragraph No. 22.2 for the role of Shri Hitesh Narayandas Fofandi (Running page 91).
3.2 After taking us through paragraph 22, he submits that as recorded in the show-cause notice, Shri Hitesh Narayandas Fofandi and Shri Ravi Sahebrao Kadam, employees of the appellant, in connivance with Shri Hemant Badola had organized the entire modus operandi to bring in the silver jewellery into India.
3.3 Learned Counsel would read paragraph 22.2 and 22.3 regarding the role played by these employees namely Shri Hitesh Narayandas Fofandi and Shri Ravi Sahebrao Kadam and submit that both the employees have never ever stated that appellant herein have played any role in respect of their misdemeanor. He would read paragraph 22.5 of the show-cause notice and submit that the employees had verified the key documents in the form of KYC documents before giving the said package and also the M/s. Aramex, Hong Kong office had collected the shipment as per declaration made by the exporter and transmitted to India. He would submit that the entire case of the Revenue seems that the appellant herein had not exercised due control over their employees.
3.4 He would submit that the show-cause notice was issued to them for imposing penalty under Section 114AA and Section 117 of the Customs Act, 1962. He would read the allegation in the notice for revocation of Courier Registration under Regulation 10 and 14 of the Courier Imports and Exports (Clearance) Regulations, 1998 as amended (page 134, para 12).
3.5 After drawing our attention to the notice issued (annexed at 134 as Ex-17) he would submit that reading of paragraph No.4 would indicate that paragraph 1 of the show-cause notice at page No. 61, the findings are same. On reading paragraph 12, he would said the paragraph indicates that the clandestine clearance of silver jewellery was effected by active involvement of two operational staff of M/s Aramex Pvt. Ltd., namely Shri Hitesh Narayandas Fofandi and Shri Ravi Sahebrao Kadam in connivance with Shri Hemant Badola and Shri Rahul Vishwanath Khamkar. He would take us through the paragraph 14 wherein specific omission and commission on the part of the appellant has been narrated for directing them to show cause as to why courier licence should not be revoked.
3.6 It is his submission that appellant contested the show-cause notice for revocation of licence by taking various defence; brings to our notice that the said Shri Hitesh Fofandi admitted to his involvement in the illegal clearance of the consignment and the acts committed by him were out of his own accord to satisfy his greed; he submits appellant Company has filed a police complaint. He would submit that they have taken a categorical stand before the lower authorities that the appellant Company had nothing to do with the entire issue as it has arisen out of personal greed of two individuals who are unfortunately their employees. It is his submission that despite such categorical stand of appellant; in paragraph 21.9 of the order-in-original, learned adjudicating authority has come to a conclusion that the appellant has not disputed the allegation in the order-in-original; a finding contrary to the stand of appellant.
3.7 In respect of the conduct of the appellant Company, he would take us to a letter dated 13.05.2014 in page 46 of the appeal memo, wherein the appellant themselves informed the office of the Commissioner of Customs that they are suspecting three more shipments were imported from Hong Kong and requested the Customs department to verify and do the needful.
3.8 After taking us through the findings recorded by the adjudicating authority he would submit that revocation of licence under Courier Regulation was incorrect. It is also his submission that the adjudicating authority has directed his findings against the appellant only on the ground that the appellant was negligent and did not exercise due care and checks on their employees. He would submit that they have stated the following decisions before the adjudicating authority for the proposition that a master is vicariously liable for the acts of his servant, unless the act is done in the course of employment, the servant's act does not make the employer liable. It is his further submission that the amount of security deposit has been forfeited which is quasi criminal and vicarious liability in criminal proceeding do not arise. He places reliance on following decisions:-
(a) V.B. Bhatia & Co. 7 2006 (200) ELT 150 (Tri. - Mum)
(b) Bharat Overseas Communicators - 2007 (209) ELT 142 (Tri. - Mum)
(c) Skypack Service Specialists Ltd. - 2011 (149) ELT 1464 (Tri. - Mum)
(d) Sitaram Motilal Kalal - AIR 1966 SC 1697 3.9 He would draw our attention to the judgement of the Hon'ble Supreme Court in the case of Sham Sunder and Others v. State of Haryana - (1989) 4 SC 630. It is his submission that in the criminal liability under Criminal Procedures Code, penal provision must be strictly construed in the first, secondly there is no vicarious liability in criminal law unless the statute takes that also within its fold. It is his further submission that Courier Imports and Exports (Clearance) Regulations Act there is no provision for holding the appellant vicariously liable for the illegal act of their employees.
3.10 He would take us through the Courier Imports and Exports Regulations, 1998 (herein after referred as Courier Regulations) more specifically to the obligations of appellant as per the Regulation 13.
3.11 He would read the Customs Broker Regulation, 1984 and submit that in the Regulation 29(7), there is a specific provision holding the Custom House Agents licence holder is responsible for the acts of omission and commission of their employees. In the 2nd Regulation of 2004 it is his submission that Regulation 19(8) and CHA Regulation 13, Regulation No. 17 (a), it is provided that the CHA is responsible for the acts of his employees.
3.12 He would take us through the judgement of the Tribunal in the case of V.B. Bhatia & Co. (supra) more specifically the paragraphs 6 and 9 (d). It is also his submission that the Revenue has challenged the Tribunal's order before Hon'ble High Court of Bombay and the Hon'ble High Court had dismissed the same in limine as no question of law arises. It is his submission that the Bench came to a conclusion for the act of employees, the courier agent cannot be penalized.
3.13 It is his further submission that proportionality of punishment meted out in the form of revocation of licence for more than two years is to be kept in mind more so as the licence has been revoked for the act of personal gain of the employees. He would submit the ratio of decision of Hon'ble High Court of Andhra Pradesh in the case of COMMR. OF CUS. & C. EX., v. H.B. Cargo Services - 2011 (268) E.L.T. 448 (A.P.); and the Tribunal in the case of Ashiana Cargo Services (I & G) 2014 (302) ELT 161 (Del) will apply in this case. He would submit that the decision of Hon'ble High Court of Delhi in the case of Ashiana Cargo Services (I & G)(supra) was maintained by the Apex Court as reported at 2015 (320) ELT A175. It is his submission that since the licence has been revoked for more than two years, the same should be suffice, appeal be allowed and licence be restored.
4.1 Learned Departmental Representative (AR) was also heard at length. He would submit that the allegations in the case are very serious. On specific information consignment of 55.15 Kg of Silver jewellery valued Rs.18,45,802/ was seized from HUB office of the Courier. During investigation, it was found that 19 similar consignments have been cleared of 1038 Kg valued Rs.4,34,25,057/-. During investigation it was found that two employee Sh. Hitesh Fofandi & Dagdu alias Ravi Kadam of Courier in connivance with Sh Hemant Badola of M/s Manisha Ente, and Sh Rahul Khamkar of M/s Sarthak Shpg Services, were main agent for such clearance along with involvement of Hong Kong staff of the Courier. Therefore action has been taken against the appellant courier company that too by following the principles of natural justice and only after SCN by the Commissioner, the Courier licence has been revoked under Reg.14 while imposing penalty under the Customs Act,1962, for violation of Regulations.
4.2 He raised preliminary objection on the jurisdiction of this Tribunal to hear the appeal. He submitted that right to appeal is not natural right or inherent right unless such right is given specifically under Statute. According to him neither the Customs Act, 1962, nor the Courier Regulations provide for any appellate remedy. He relied upon the following judgments to buttress his argument.
(a) C.V Jossi Vs CCE, 2001-135ELT783-T-Bang
(b) State of Maharashtra Vs Mahboob Allibhoy,1996- 85ELT22-SC
(c) Rajkumar Shivhare Vs Dte of Enforcement, 2010-253-ELT-3-SC
(d) Commr Vs Singapore Airlines , 2010-259ELT642-Del 4.3 He submitted that in past the Tribunal has not entertained the appeals arising in courier matters and referred to the following decisions:
(a) Express Handling Worldwide,2014-299-ELT-359(Tri-Mum)
(b) Indus Express Courier Vs CC, 2008-226ELT204-T-Del 4.4 He further submitted that there is a practice of filing representation before Chief Commissioner against order of Commissioner under Courier Regulations,1998 and referred to the decision in the case of Bombino Express Pvt Ltd Vs Chief Commr-Cus,2015-315-ELT-496-Del.
4.5 He submitted that in the appellants own case earlier they had filed representation before Chief Commissioner and thereafter it was challenged before Hon'ble High Court. According to him provision for representation is sufficient remedy. In this regard he referred to the decision in the case of DHL Express India Pvt Ltd Vs U01,2015-316-ELT-651(Kar).
4.6 He submitted that there is similar provisions under CHALR to make representation to Chief Commissioner which is considered sufficient by the Honble Bombay High Court and the Honble Calcutta High Court. He also relied upon a decision of larger bench in Intercontinental Cargo Service Vs CC, Delhi, 2012-279-ELT-524(Tri-LB) and the decision in Courier Association of India Vs U01,2015-317-ELT688-Bom.
4.7 He further submitted that the contrary view of Tribunal on jurisdiction in matters of Courier Regulation,1998 in the matter of Bombino Express Pvt ltd Vs CC vide Order dated 23 March,2016 (Tri-Mumbai) was not binding and matter can be referred to Larger Bench as there are contrary decisions on the issue by placing reliance on Vodafone India Vs CCE, 2015-324ELT434-Bom, CCE Vs Mahindra & Mahindra,2015-315ELT161-SC and CCE Vs Kraps Chem Pvt Ltd,2015-319ELT622-SC.
4.8 Without prejudice he submitted that there was systemic failure/lax administration of Courier to contain fraud and there was involvement/complicity of its foreign counter part. The appellant Courier was delivering goods at HUB office instead of consignee address. There was violation of Reg.13(i) as the courier failed to verify antecedent, correctness of IEC or identity of importer which was found to be fictitious. The employee forged dummy B/E, destroyed same after removal of goods which were not declared before Customs. The Invoice for consignment was not found in System, but submitted later for verification. Work was done by the employees involved in the case during course of employment, as goods moved to their HUB office from where goods are delivered. It is not case that employee did something outside employment. Based on employer request Customs pass has given to employee of Courier, hence it is natural that they are vicariously liable for wrong doing during such employment. There is lack of supervision, and clearance of 20 consignments was in similar fashion. He submitted that the judgments relied upon on behalf of the appellant were not relevant and applicable in the facts of the case. He relied upon the following decisions to submit that no reliefs be granted to the appellant:
(a) CC Vs K.M Ganatara, 2016-TIOL-12-SC-CUS
(b) Chandra CFS ,2015-236ELT122-Mad.
(c) Sri Kamakshi Agency Vs CC, 2001-129ELT29-Mad.
(d) Bipin M Pujara Vs CC,1999-107-ELT298-Cal
(e) CC Vs Alnoori Tobaco , 2004-170ELT-135-SC
5. We have carefully considered the rival submissions oral as well as written. We have perused the records and the plethora of judgments relied upon by both the sides.
6. So far as issue of maintainability is concerned, it is squarely covered by our decision in the Bombino Express Pvt ltd Vs CC vide Order dated 23 March,2016, wherein appeal was held as maintainable against the Order-in-Original dated 12.12.2014 passed by the Respondent Commissioner revoking the registration as a Courier and all such contentions were considered in the light of relevant statutory provisions. It was observed that-
4. On behalf of the Revenue, a written submission was tendered along with a compilation of judgments, to submit that that this Appeal was not maintainable in view of the provisions of the Courier Imports and Exports (clearance) Regulations 1998 and the following orders or judgments were relied upon-
(i) Express Handling Worldwide Vs. CC, CSI Airport, Mumbai, 2014 (299) E.L.T. 359 (Tri.),
(ii) DHL Express India Pvt. Ltd., Vs. Union of India, 2015 (316) E.L.T. 651 (Kar. HC),
(iii) Bombino Express Pvt. Ltd. Vs. Chief Commissioner of Cus., Delhi Zone, 2015 (315) E.L.T. 496 (Del.),
(iv) Transit Freight Forwarders vs. Commissioner of Customs, order dated 10.04.2013 of the Hon'ble Kerala High Court in the Writ Petition (C) No. 10280 of 2013,
(v) Commissioner of Central Excise, Mumbai vs. Thakkar Shipping Agency, 2014 (308) E.L.T. 500 (Tri. Mumbai),
(vi) Intercontinental Cargo Services Vs. CC, Delhi, 2012 (279) E.L.T. 524 (Tri. LB),
(vii) G.P. Jaiswal Vs. CC, Lucknow, 2008 (226) E.L.T. 707 (Tri. Del.),
(viii) Naresh Jaisingh & 3 Ors. Vs, CC-Gen, Mumbai, 2015-TIOL02707-Cest-Murn,
(ix) S. R.Sale U Co. Vs. CC (General), Mumbai, 2013 (295) E.L.T. 653 (Bom.), and
(x) A. Vasan & Sons Vs. Union of India, 2009 (238) E.L.T. 217 (Bom.)
5. It is seen that in none of the above decisions relied upon by the Revenue, the question of maintainability was an issue in respect of any Appeal against an order passed by the Commissioner of Customs as an Adjudicating Authority, under Regulation 10 of Courier (Import & Export) Regulations, 1998, which were notified by the Central Board of Excise & Customs, in ' exercise of powers conferred under Section 157 of the Customs Act, 1962. In Express Handling Worldwide (supra) the -appeal was preferred against the order passed by the Chief Commissioner of Customs, Mumbai on a representation filed by the Appellant, and not against order passed under Regulation 10, by the Commissioner of Customs as an Adjudicating Authority. In DHL Express India Pvt. Ltd. (supra), the Hon'ble Karnataka High Court refused to exercise its extraordinary and discretionary writ jurisdiction against suspension of courier licence. In Bombino Express Pvt. Ltd. (supra), the Hon'ble Delhi High Court dismissed their writ petition, without deciding any such issue of 'maintainability', as the same was neither raised, nor was under consideration of the Hon'ble Delhi High Court. In the matter of Transit Freight Forwarders (supra), the Hon'ble Kerala High Court was not inclined to exercise their extraordinary writ jurisdiction under Article 226 of the Constitution of India, and found it fit and proper to relegate the Petitioner therein to avail remedy suggested by the Counsel appearing for the Petitioner therein, as provided under Regulation 14(2). Therefore, even the said order dated 10.04.2013 is not an authority on the issue of maintainability of the instant appeal. All the other judgments / orders of the Tribunal and of the Hon'ble Bombay High Court were in the context of Customs House Agents Licensing Regulation, in the context of Orders issued under Section 146 of the Customs Act, 1962. None of them involved the issue of maintainability of appeal against an order passed by the Commissioner of Customs as an Adjudicating Authority, under Regulation 10 of Courier Import & Export Regulations, 1998, notified by the Central Board of Excise & Customs, in exercise of powers conferred under Section of the Customs Act, 1962.
We have perused Section 146 vis-`-vis Section 157 of the Act. Section 146 provides inter alia as under-
"146. Licence for customs brokers (2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulations may provide for
(g) The appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeal may be filed."
6. Section 146 specifically provides that the Board may make regulations for the purpose of carrying out the provisions of "this section and, in particular, such regulations may provide for "the appeals", if any, against an order of suspension or revocation of a licence, and "the period within which such appeal may be filed". Section 146 permits specific provisions for appeals regarding Customs Broker, and therefore, such specific provisions of appeal override the general provisions of the appeal under Customs Act, 1962. As against this, section 157 confers general power to make regulations, which are required to be made by the Board "consistent with this Act and the rules". No provision under Section 157 provides for any special power and procedure for the appeals or takes away the general statutory right of appeal, in the matter of an Authorized Courier. Hence, the above decisions on issue of maintainability passed in respect of Customs House Agents governed by section 146, are totally inapplicable. We also find merit in the submission made on behalf of the Appellant that although the Customs (Provisional Duty Assessment) Regulation, 2011, notified by the Board in exercise of powers conferred by Section 157 of the Customs, 1962 like the Courier Regulation issued under the same provision i.e. Section 157 of the Act, do not contain any provisions for any statutory appeal, however, it is settled law that the orders passed under the said Regulation issued under Section 157 of the Customs Act, 1962 are appealable orders, under the Act as held by the Hon'ble Bombay High Court, in Indoworth (India) Ltd., 2010 (254) E.L.T. 62 (Bom.). We are convinced that the impugned Order is an appealable order in view of the clear language of Section 129A read with the definition of the words "Adjudicating Authority" as contained under Section 2(1), which permits any person to file appeal before the Tribunal, if aggrieved by any decision or order passed by the Commissioner of Customs as an Adjudicating Authority. Since the impugned Order is passed by Commissioner of Customs as an adjudicating authority, under the provisions of Customs Act, 1962 and Regulations framed thereunder, the same is appealable order. Moreover, vide our earlier Order dated 06.01.2016 in Application C/COD/95496/15 in this Appeal we had already observed as follows -
"6. We have to decide whether an appeal lies before this Tribunal or otherwise. On plain reading of Section 129A of the Customs Act, 1962, we find that as the order has been passed by the Commissioner of Customs as an adjudicating authority, this appeal lies before this Tribunal. The adjudicating authority is also defined under Section 2(1) of the Customs Act, 1962 which means an authority competent to pass any order or decision under this Act. It is very clear from the reading of the regulations that they were enacted under the powers of Section 157 of the Customs Act, 1962 for furtherance of activity under the Said Act. Hence, we are of the view that this appeal lies before this Tribunal."
Thus, the issue of maintainability was already decided by us while condoning the delay in filing of the instant appeal, and the .attempt of the Revenue to seek review thereof was unwarranted and erroneous.
7. Another preliminary objection was raised by the Revenue that vide Order dated 21.01.2016, representation of the Appellant was rejected by the Chief Commissioner of Customs, and hence, the Tribunal shall not interfere with the impugned Order. We find no merit in this preliminary objection. A representation is not same as appeal. In an order passed on representation, there is no merger with the original order as in case of an order passed in an appeal. The representation is not in derogation of the statutory remedy of appeal. An appeal, if preferred, has to be decided on its own merits. .
7. This view taken by us is binding on us. The said judgment has not been set aside with any finding that no appeal lies against an order passed by the Commissioner of Customs as an Adjudicating Authority, under Regulation 10 of Courier (Import & Export) Regulations, 1998, which were notified by the Central Board of Excise & Customs, in ' exercise of powers conferred under Section 157 of the Customs Act, 1962. On plain reading of Section 129A of the Customs Act, 1962, we find that as the order has been passed by the Commissioner of Customs as an adjudicating authority, this appeal lies before this Tribunal. The adjudicating authority is also defined under Section 2(1) of the Customs Act, 1962 which means an authority competent to pass any order or decision under this Act. It is very clear from the reading of the regulations that they were enacted under the powers of Section 157 of the Customs Act, 1962 for furtherance of activity under the Said Act. No judgment to the contrary deciding the issue of maintainability in light of these statutory provisions and definitions, which were considered in the case of Bombino (supra), has been produced. Moreover, the vide the impugned Adjudication Order the Commissioner as an Adjudicating Authority has imposed penalty under Section 158(2)(ii) of the Customs Act, 1962. None of the judgments relied upon by the Respondent hold that penalty imposed by the adjudicating authority under a provision of Customs Act, 1962 cannot be challenged in Appeal before this Tribunal. Therefore, we do not find any merit in the request for referring the matter to a larger bench. We therefore have no hesitation in holding that the appeal is maintainable as per the ratio laid down in Bombino (supra).
7.1 We have carefully considered the factual allegations. The appellant has denied any knowledge of the alleged conspiracy and offence committed by certain persons, which included some employees of the appellant. This lack of knowledge is not in dispute. The appellant courier ought to have been more cautious and vigilant. There was systemic failure / lax administration of Courier to contain fraud, there was involvement / complicity of its employee of foreign counter part, and certain employees committed gross illegalities. However, we find that it is not the case of the department that the appellant courier company itself was actively involved in any violation by taking help of its employees with intent to evade any duty or prohibition or for any personal gains. We find that there is no dispute on the fact that the named employees of the appellant courier have committed gross violations on their own accord to satisfy their own greed without knowledge of the appellant courier.
7.2 It is also not in dispute that the appellant courier has initiated criminal and disciplinary proceedings against the guilty employees and removed them from service. It is seen from the impugned order itself that the employee Hitesh Fofandi was terminated on 19.5.2014 and police complaint against him was filed with Sahar Police Station, Andheri, Mumbai on 29.5.2014 itself. It is not the case of the department that the police investigations revealed any complicity of the appellant courier.
7.3. The courier license was granted to appellant in 2005. It is not in dispute that since then the appellant courier had unblemished track record. The adjudication order records that the submission of appellant that various internal processes have been rehashed and remedied to ensure that such lapses do not happen in future. The appellant has been proceeded against by alleging the vicarious liability for the acts committed by its employees.
7.4 It is not the case of the department that the appellant courier was making any payment to the guilty employees for the illegal work done by them. It is also not a case where the employees are doing any illegality at the instance of their employer. The guilty employees were not employed for such illegal acts, which were outside of the scope of their employment. The positive case of the department against the appellant is that there was systemic failure on behalf of the appellant to detect the fraud and lack of supervisory control. It cannot therefore be held that the appellant itself has committed any fraud with intent to evade any duty or prohibition. The observations to this effect recorded in the impugned Order are thus erroneous.
7.5. Even if the Courier company was to be penalized for lack of proper supervision and being negligent for violation of courier regulations in this regard, the penalty of Rs. 50,000/- has been imposed on them under Section 158(2)(ii) of the Act for violation of provisions of Courier Regulations.
7.6. The Courier License was suspended on 06.06.2014 pending inquiry for revocation. Thereafter the same has been revoked vide the impugned Order without conducting any further inquiry under Courier Regulations, by relying upon the show cause notice issued under Section 28 read with Section 124 of the Act. The Appellant and its employees (other than the guilty employees), who were themselves not involved in any fraud, have already faced much hardship and have been deprived of their livelihood for a considerably long period since June, 2014. The punishment already suffered by keeping them out of business and imposition of penalty of Rs. 50,000/- under Section 158(2)(ii) should suffice. In Falcon Air Cargo and Travels (P) Ltd. Vs Union of India, 2002 (140) E.L.T. 8 (Del.), the Hon'ble Delhi High Court was pleased to observe that-
"13...Though we have not dealt with the question of proportionality, it is to be noted that the authorities while dealing with the consequences of any action which may give rise to action for suspension, revocation or non-renewal have to keep several aspects in mind. Primarily, the effect of the action vis-a-vis right to carry on trade or profession in the background of Article 19(1)(g) of the Constitution has to be noted. It has also to be borne in mind that the proportionality question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death."
7.7 In view of the reasons recorded hereinabove, we do not find any reasonable justification to subject the appellant to any further punishment by extending benefit of doubt. In the result, we are allowing the appeal and we set aside the impugned Order to the extent it revoked the Courier Registration and forfeited the amount submitted by the Appellants as security at the time of registration of the Courier License. The Courier Registration of the Appellant stands restored with security deposit forthwith with consequential relief.
8. The appeal is partly allowed with consequential relief.
(Order pronounced in Court on 29.12.2016) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk 1 25 Appeal No. C/86300/16