2012 (8) TMI 573 - AT - Customs

Restoration of CHA licence - Fraudulent export of prohibited narcotics drugs - violation of the provisions of Regulation 13 of CHALR, 1984 read together with Regulations 13(b), 13(e) and 19(8) of CHALR, 2004 - The appellant has suffered for a period of 6 years and is ready to give any undertaking to work diligently in the future years. - Difference of opinion - matter referred to larger bench.

Summary

Issues Involved:
1. Suspension and subsequent revocation of the Customs House Agent (CHA) license.
2. Misrepresentation and procurement of G cards for non-employees.
3. The severity of the misconduct and its impact on the CHA's livelihood.
4. The adequacy of the punishment already suffered by the appellant.
5. The Tribunal's authority to restore a revoked license based on the duration of suspension.

Issue-Wise Detailed Analysis:

1. Suspension and Subsequent Revocation of the CHA License:
The Commissioner suspended the appellant's CHA license, issued in 1996-97, under the Custom House Agent Licence Regulation (CHALR) 1984. The suspension was based on findings that the appellant procured G cards for two individuals, Naveen Mishra and Jawed Kamal, who were not his employees but were associated with M/s. V.K. International, a freight forwarding company involved in the fraudulent export of narcotics. The Commissioner held that the appellant's actions violated Regulations 13(b), 13(e), and 19(8) of CHALR 2004, justifying the suspension as necessary to protect public interest.

2. Misrepresentation and Procurement of G Cards for Non-Employees:
The appellant admitted to procuring G cards for Naveen Mishra and Jawed Kamal by misrepresenting them as his employees. This was done for a consideration of Rs. 15,000 from M/s. V.K. International. The appellant claimed ignorance of the illegal activities of M/s. V.K. International and argued that he acted in good faith, believing it was a legitimate business requirement.

3. The Severity of the Misconduct and Its Impact on the CHA's Livelihood:
The adjudicating authority found that the appellant's actions amounted to subletting his CHA agency, which facilitated the fraudulent export of narcotics. The Commissioner deemed this a serious violation warranting immediate and stern action. The appellant's advocate argued that the appellant had an unblemished record for nine years and that the suspension and subsequent revocation of the license were too harsh, especially since the appellant was not directly involved in the export of narcotics.

4. The Adequacy of the Punishment Already Suffered by the Appellant:
The appellant's advocate cited various Tribunal decisions to argue that the punishment should be proportional to the offense. He contended that the appellant's six-year suspension was sufficient punishment and that the revocation of the license deprived him of his livelihood. The advocate emphasized the appellant's readiness to work diligently in the future and requested the restoration of the license.

5. The Tribunal's Authority to Restore a Revoked License Based on the Duration of Suspension:
The Tribunal's Member (Judicial) found the suspension and revocation of the license to be too harsh, considering the appellant's lack of direct involvement in the illegal export and his unblemished record. She cited previous Tribunal decisions where similar cases resulted in the restoration of licenses after a period of suspension. However, the Member (Technical) disagreed, emphasizing that the appellant's actions were a serious breach of trust. He argued that the Tribunal should not restore the license based on the duration of suspension alone, as there is no provision in the regulations for commuting the punishment.

Separate Judgments:
The Member (Judicial) ordered the restoration of the license, considering the six-year suspension as sufficient punishment. She relied on past Tribunal decisions and the appellant's readiness to comply with regulations in the future.

The Member (Technical) disagreed, emphasizing the seriousness of the misconduct and the lack of legal provision for restoring a revoked license based on the duration of suspension. He argued that the Commissioner of Customs is the best judge in such matters and upheld the revocation.

Conclusion:
The case was referred to a larger bench to resolve the difference in views between the Members (Judicial and Technical). The main point of difference was whether the CHA license should be restored, considering the appellant's six-year suspension and the nature of the misconduct. The final decision would be based on the resolution of this point of difference by the larger bench.