9911796707
TMI Blog2011 (11) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... hort] at Customs House, Kandla and Mundra under regulation 9(2) of the Customs House Agent Licensing Regulations, 2004 [to be hereinafter referred as, "the regulations"]; on the basis of license granted by the parent CHA, being the Commissioner of Customs, Jaipur. Pursuant to some DRI investigations on various parties; including one Messrs. Dadi Impex Private Limited, Mumbai - an Exporter, who was allegedly found in attempting illegal exportation of Muriate of Potash [MOP], which is a restricted commodity for export in terms of Foreign Trade Policy 2009-2014, in the guise of free flow salt. On seizure of such consignments, a show cause notice was issued on several parties; including the present petitioner, for attempting to illegall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enged. On issuance of the notice to the otherside, affidavit-in-reply is submitted, wherein, it is admitted that in exercise of power conferred on the Commissioner of Customs, the order of prohibition has been passed, on being satisfied that the petitioner has violated the provisions of CHALR, 2004 and for having failed to fulfill the obligation under Regulation 13 and other regulations. It is also further contended that the subjective satisfaction of the Commissioner is based on the objective facts which resulted into passing the prohibition order dated 1st June 2011. The allegation made is to the effect that the petitioner was found involved in sub-letting his CHA license to one Mr. Kamal Inderraj Gurnani in contravention of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot bind the CHA and as such prohibition results into serious civil consequences and directly affects his right of livelihood, non granting of hearing is fatal. Counsel for the petitioner Mr. Hasit D. Dave urged this Court that when there is no material to implead the present petitioner with the alleged misdeeds of its employees, any act of Commissioner directly affecting his right of livelihood must be held as illegal and contrary to the principles of natural justice. He further urged the Court that the impugned order has been passed without availing any opportunity of hearing. Almost four months have passed and there is no sign of any proceedings under Regulation 22, and moreover, such an order of prohibition, since does not perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of facts unearth by the Directorate of Revenue Intelligence. Mention is necessary at this stage that without going into the larger question of scope of Regulation 21 and whether hearing is contemplated either at the pre-decisional or post-decisional stage in the Regulation, in light of the discussion to be followed hereinafter, this petition is being decided. In this premise, when the entire scheme of regulations is examined, it clearly gets revealed that Regulation 13 read with Regulation 19 (8) would make it obligatory on the part of the CHA to be responsible for the action of its employees. Regulation 12 provides that CHA license is not transferable and Regulation 19 (8) prescribes that CHA should exercise such control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to supervise the action of his employees, neither any contact was made with M/s. Dadi nor was authorization obtained from it. CHA when engages the employees for conducting his business, he acts through him and when alleged illegalities committed are in the course of employment and while discharging its function as CHA, he cannot disassociate himself from those acts, when not having fulfilled his part of obligation. We would resist from opining further on the alleged involvement of the employees of the petitioner or on the responsibility of the petitioner as a CHA in such circumstances, in the present petition as there is already a case booked by DRI and it is a matter yet to be adjudicated upon in a completely separate proceeding and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d belatedly, the Court had not sustained it. It also found no order in post decisional proceedings for nearly 3 weeks. Yet another decision of the Bombay High Court, reported in [(2011) 263 ELT 353 in case of C.C [Customs] v. S.S. Clearing and Fowarding Agency Pvt. Limited pertains to clearance of goods in absence of authorization in favour of CHA and the Bombay High Court held that the CHA ought not to have acted without authorization but the Customs Officer also was duty bound to check the authorization in favour of the CHA before allowing him to act as CHA for the importer. Therefore, it was not the CHA alone who could be blamed and punished. Court found contributory default of both, CHA and that of the Officer. This was of cours ..... X X X X Extracts X X X X X X X X Extracts X X X X
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