2002 (6) TMI 549 - AT - Customs

Summary

Issues Involved:
1. Whether the Commissioner's order revoking the appellant's Custom House Agent (CHA) licence without a hearing was valid.
2. Whether the appellant was denied the opportunity to cross-examine witnesses.
3. Whether the charges against the appellant, including subletting the licence, improper record-keeping, and unauthorized customs passes, were established.
4. Whether the penalty of permanent revocation of the CHA licence was appropriate.

Issue-Wise Detailed Analysis:

1. Validity of Commissioner's Order Without a Hearing:
The appellant contended that the Commissioner passed the order ex parte without granting a hearing despite a request made in a letter dated 21-12-99. However, the Tribunal noted that Regulation 23 of the Customs House Agent Licensing Regulations, 1984, did not make a hearing mandatory. The appellant did not specifically ask for a hearing in the letter. Therefore, the Tribunal concluded that the Commissioner was not at fault for not providing a hearing.

2. Denial of Opportunity to Cross-Examine Witnesses:
The appellant argued that they were not allowed to cross-examine the witnesses listed in the notice. The enquiry officer's report indicated that not all witnesses were examined or made available for cross-examination. However, the record showed that the appellant's advocate stated they did not wish to cross-examine any other witnesses. The Tribunal found that the appellant had waived their right to cross-examine by not exercising it when given the opportunity.

3. Establishment of Charges:
- Subletting the Licence: The first charge alleged that the appellant sublet its licence to Prabhat Kiran Marine for clearing a consignment of gypsum. The appellant denied this, claiming Prabhat Kiran Marine acted on behalf of the importer. However, evidence showed that the appellant's employee provided blank signed gate passes, and the appellant was to receive Rs. 1,500 per container. The Tribunal found this charge established.

- Improper Record-Keeping: The third charge was that the appellant did not maintain proper records, including gate pass numbers and separate dockets for consignments. The appellant's executive director's statement supported this charge, which the Tribunal found established.

- Unauthorized Customs Passes: The fourth charge alleged that the appellant obtained customs passes for persons not employed by them. Statements from the appellant's executive director and the individuals involved confirmed this. The Tribunal found this charge partially established, as there was no evidence for some individuals mentioned.

4. Appropriateness of Permanent Revocation:
The Tribunal noted that none of the established charges involved jeopardy to revenue or abetment of duty evasion. The proceedings arose from a procedural contravention related to clearing a consignment of gypsum. The Tribunal cited precedents where penalties were reduced from permanent revocation to temporary suspension. Given the appellant's clean record since 1956 and the four-year suspension already undergone, the Tribunal found the suspension sufficient punishment and ordered the licence to be restored.

Separate Judgment:
One member dissented, arguing that the offences were serious enough to warrant permanent revocation. The dissenting opinion highlighted the gravity of the offences and referenced similar cases where permanent revocation was upheld.

Majority Decision:
The third member agreed with the dissenting opinion, emphasizing the gravity of the offences and upheld the permanent revocation of the CHA licence. The appeal was ultimately dismissed.

Conclusion:
The appeal was dismissed, and the permanent revocation of the appellant's Custom House Agent licence was upheld due to the seriousness of the established charges, including subletting the licence, improper record-keeping, and unauthorized customs passes.