Customs, Excise and Gold Tribunal - Mumbai
K.M. Ganatra And Co. vs Commissioner Of Customs (G) on 2 March, 2001
Equivalent citations: 2001(132)ELT799(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. On hearing both sides on the stay application the appeal itself was taken up for disposal.
2. We have heard Shri V.M. Doiphode Advocate for the appellants and Shri A.K. Jain for the Revenue.
3. The Commissioner of Customs (G) Mumbai on receipt of a letter from the Commissioner of Customs ACC, Mumbai, communicating circumstances in which the appellants had come to his adverse notice, suspended the Custom House Agent Licence of the appellants in exercise of the powers conferred under Rule 21(2) of the Custom House Agents Licensing, 1984. The appeal is against this order. The claim made is that for Sub-Regulation (2) to be invoked the offence must be of such magnitude that immediate action is required.
4. At our instance the letter referred to the impugned order was called for and perused. The letter from the Commissioner of Customs ACC refers to a case of seizure of Mobile Phones. It states that the present appellant had permitted their licence to be used by their own employees and thereby violates the Regulations. The letter does not bring out the relationship of the appellants in the smuggling of the Mobile Phones at all. From the language, it appears that such misuse of their licence was granted by the present appellants to their employees over a considerable period.
5. In a situation where there is no report of direct involvement of the appellant in the smuggling of Mobile Phones, we do not understand why the power under Regulation 21(2) were resorted to. The language of the Sub-Regulation shows that for taking action thereunder a case must be made for immediacy. It also pre-supposes that an inquiry against the agent has been commenced. Such inquiry in terms of Regulation 23 commences with the issue of a notice to the CHA. In the Commissioner's order it is stated that there was a case under investigation against the appellants. Shri V.M. Doiphode submits that the investigation might relate to the import of Mobile Phones, but do not refer to the inquiry under Regulation 23. In reply to a direct query he clarified that no such notice under Regulation 23 had been issued to the appellant.
6. In these circumstances we find that the Commissioner had erred in making the order under Regulation 21(2), when the requirements of the sub-regulations were not fulfilled. This order does not sustain and is set aside.
7. It is made clear that the Commissioner is free to institute such proceedings under Regulations 21 and 23 as he deems warranted following the requirements of the Regulations.
8. The appeal is allowed.