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2012 (7) TMI 514 - HC - CustomsPower or authority - Commissioner of Customs Custom House Agents Licensing Regulations 2004 - disagreement with the report of the Inquiry Officer - Held that - No dispute that the rank of the Commissioner of Customs is higher than the rank of Assistant Commissioner of Customs / Deputy Commissioner of Customs. Under Regulation 22(1) it is the Commissioner who is empowered to issue notice to the CHA setting out the grounds on the basis of which he proposes to suspend or revoke the CHA license and require the CHA to submit his written statement of defense to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by the Commissioner of Customs - the Commissioner is empowered to direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are disputed by the CHA - Regulation 22(3) to Regulation 22(5) set out the mode and the manner in which the inquiry is to be conducted by the inquiry officer and submit the report to the Commissioner. It is the Commissioner who is empowered to pass such orders as he deems fit after considering the inquiry report and the representation of the CHA if any - whether the inquiry report is in favour of the CHA or not it is the Commissioner who has to pass the final order as he deems fit on the showcause notice issued by the Commissioner - . The argument that under Regulation 22(6) the CHA is required to make representation only to the extent the findings in the inquiry report that are against the CHA cannot be accepted - the Commissioner is empowered to disagree with the findings recorded in the inquiry report and pass such orders as he deems fit and if the CHA is aggrieved by the order of the Commissioner he is entitled to challenge the said order by filing an appeal.
Issues Involved:
1. Whether the Commissioner of Customs is entitled to differ with the findings arrived at by the Deputy Commissioner or Assistant Commissioner of Customs under Regulation 22 of the Customs House Agents Licensing Regulations, 2004. 2. Whether the Commissioner of Customs has the authority to disagree with the report of the Inquiry Officer under Regulation 22. Issue-wise Detailed Analysis: Issue 1: Authority of the Commissioner of Customs to Differ with Findings of Deputy/Assistant Commissioner The primary issue revolves around the interpretation of Regulation 22 of the Customs House Agents Licensing Regulations, 2004. Specifically, whether the Commissioner of Customs can differ from the findings of the Deputy Commissioner or Assistant Commissioner of Customs. The petitioner argued that under Regulation 22(6), the Customs House Agent (CHA) is required to make a representation only against adverse findings in the inquiry report. Hence, if the findings are favorable, there would be no need for a representation, implying that the Commissioner cannot pass an order against the CHA if the report is favorable. However, the court clarified that Regulation 22(7) empowers the Commissioner to pass "such orders as he deems fit" after considering the inquiry report and any representation made by the CHA. This indicates that the Commissioner has the discretion to agree or disagree with the inquiry report. The court emphasized that the rank of the Commissioner is higher than that of the Deputy or Assistant Commissioner, and thus, the Commissioner is not bound by the lower officer's findings. Issue 2: Power to Disagree with the Inquiry Officer's Report The second issue concerns whether the Commissioner has the authority to disagree with the Inquiry Officer's report. The petitioner relied on a previous Division Bench judgment in the case of Rajan Virji & Company, which suggested that the Commissioner does not have such authority. However, the court found this interpretation erroneous, noting that Regulation 22(7) explicitly allows the Commissioner to pass orders as he deems fit after considering the inquiry report. This includes the power to disagree with the report. The court also addressed the argument that the Central Civil Services (Classification, Control & Appeal) Rules, 1965, require the Disciplinary Authority to record reasons for disagreeing with the Inquiry Officer's findings. The court noted that while such a provision exists in the Civil Services Rules, it is absent in the 2004 Regulations. Nevertheless, the absence of this provision does not imply that the Commissioner is bound by the Inquiry Officer's findings, especially when Regulation 22(7) grants the Commissioner the authority to pass orders based on his discretion. Conclusion: The court concluded that under Regulation 22 of the 2004 Regulations, the Commissioner of Customs is empowered to disagree with the findings recorded in the inquiry report and pass such orders as he deems fit. If the CHA is aggrieved by the Commissioner's decision, they have the right to appeal under Regulation 22(8). The court's interpretation ensures that the Commissioner retains the ultimate authority to make decisions regarding the suspension or revocation of a CHA license, regardless of the Inquiry Officer's findings. The reference was disposed of accordingly, with instructions to place the Writ Petition before the regular bench for disposal in accordance with the law.
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