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TMI Blog2002 (6) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... e procedure for suspending or revoking the licence contained in sub-regulation (6) provisions for the agent to submit within a period of not more than 60 days from the receipt of the enquiry officer any representation he may wish to make against it. Sub-regulation (7) provides that after considering the report and representation thereto the Commissioner shall pass orders as he may deem so. Neither sub-regulation (6) nor sub-regulation (7) made a hearing mandatory. We have already noted that the appellant did not specifically ask for a hearing. That being the case, we cannot find fault with the Commissioner on the ground that hearing had not been granted. 4. The contention that was taken before the Commissioner was that the appellant was not permitted to cross-examine the witnesses. Annexure 4 to the notice issued to the appellant proposed to revoke the licence indicated 11 witnesses on whose statements reliance was to be placed. It is clear from the enquiry officer s report that not all these witnesses were examined by him or made available for cross-examination. The enquiry officer s report and the daily sheet, which form part of the report, indicating the details of the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent for clearance of the goods and that Sunil Kothari and Parag Mehta are the real culprits. This was the same plea with regard to article 2, which alleged removal of this gypsum in question at an incorrect gate in the customs area contravened to instructions. 7. The appellant however has not explained how it happened that Parag Mehta and Sunil Kothari were able to obtain blank gate passes (i.e. blank but signed) from the appellant s employee; the name of the employee is not given. Parag Mehta, at the hearing before the enquiry officer stated that he did not remember what happened as the matter was two years old, as thus Sunil Kothari. However, Subhash Sethi, the director in his statement on 28-1-98 has accepted that Sunil Kothari typed the bill of entry for the clearance of the goods, also accepted that Custom House Agent was to get Rs. 1,500 per container. The fact of blank signed gate passes from the appellant also has been established. 8. However, the contention before us was that the amount of Rs. 1,500 was not to be given so as to enable Prabhat Kiran Marine to utilise the appellant s licence for clearance but was a normal commercial payment. It was explained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or them. We must conclude that this charge is partially established. 11. The charge five is that the importer did not contact the appellant directly but through various handling agents and most of the bills of entry are brought for clearance by Maheshwari or J.R. Kullar and Co. While this charge is also denied, we do not see how this amounts to contravention of the Rules. It appears that there are handling agents in Kandla who act as intermediate agents between the importer and exporter. If the Custom House Agent obtained business through the handling agent, we do not see how the regulation would be contravened. There are no regulation prohibiting this. However the regulation provides that sub-regulation 14(a) that a Custom House Agent must obtain an authority from each of the company or individual from whom he is for the time being employed as Custom House Agent. The grounds rely upon the admission in the statement dated 20-3-98, he has not received any authorisation from R.P. Bansal and Co. Therefore, so far as this consignment is concerned, there is a failure to obtain the authorisation. At the same time, however, we must note that the allegation in the first article of the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , while the appellant is liable to punishment, we do not think that revocation for all time of the licence is called for. We note decision of the Tribunal in Damani Brothers v. CC, 2000 (125) E.L.T. 582, M.S. Mehta Co. v. CC, 1994 (74) E.L.T. 304 and Johar Enterprises v. CC, 1996 (84) E.L.T. 226. In the first case, the Tribunal has held that failure by the appellant to inform the department of diversion of goods imported under an exemption in the DEEC scheme calls for punishment but not such as to permanently disable him and has limited the punishment to revocation for about a year from the date of the Commissioner s order. In the second case, the Tribunal has, while finding that the Custom House Agent was liable to penalty for permitting other person to transact proceedings on its licence, set aside the order of cancellation of the licence and substituting with revocation for four years from the date of the order of the Collector. In the third case, the Tribunal had, on finding liability of the Custom House Agent to punishment reduced the revocation to suspension for two years. 14. The appellant s licence was suspended by order dated 16-1-98. It has thus not functioned as Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence could be revoked on any of the following grounds :- (a) failure of the Custom House Agent to comply with any of the conditions of the bond executed by him under Regulation 11; (b) failure of the Custom House Agent to comply with any of the provisions of these regulations, whether within the jurisdiction of the said (Commissioner) or anywhere else; (c) any misconduct on his part whether within the jurisdiction of the said (Commissioner) or anywhere else which in the opinion of the (Commissioner) renders him unfit to transact any business in the Customs Station. Ground (c) stands established against the appellants on the evidence on record. I do not think that the party deserves to be treated with such leniency as meted out to the CHAs in the cases of Damani Brothers, M.S. Mehta Co. and Johar Enterprises cited in para (13). A close examination of the facts and evidence in those cases will reveal that the gravity of offence found against those CHAs was not as enormous as in the present appellants case. On the other hand, in my view, the present appellants case is similar in gravity of offence to the case of Eagle Transport Services v. C.C., Mumbai [1997 (96) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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