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TMI Blog2014 (6) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... at complaint has been proved against them. In other words, the CHA is suggesting that the phrase ‘instances of any complaints of misconduct’ has to be read as ‘instances of any complaints of proven misconduct’. Charge sheet reproduced does not lead to the conclusion that there is conclusive evidence of knowledge of red sanders in the container leave alone connivance. There is definitely need for more detailed examination of all the evidences and documents and records. If the show-cause notice issued for revocation of licence was adjudicated and licence revoked, the renewal allowed would not have any effect on the proceedings against the licensee in any way whatever be the outcome. If the revocation is not ordered, the appellant-CHA can continue without any further problems since the only ground for rejection of renewal is the show-cause notice. In the present case if we allow the appeal on a permanent basis, the department cannot issue a show-cause notice for revocation of licence in view of the fact that no show-cause notice has been issued for revocation of licence and the regulations require that if there is a complaint of a misconduct licence should not be renewed. Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had a blemished record. It was stated that one of the employees of the appellant had been charge sheeted and the prosecution is in progress. However the report also stated that the said firm or their employees has not been penalized till date in accordance with Customs Act and custom house agent is operating in Kolkata as a broker. A show-cause notice was issued on 08.04.2014 proposing to reject the renewal application and after considering the reply given by the appellants, impugned order has been passed whereby the renewal application has been rejected on the ground that there is a complaint pending against the appellants and therefore the licence cannot be renewed under Customs Brokers Licence Regulations (CBLR). 3. The learned counsel submitted that the appellants have had an impeccable professional record of their business throughout the country, having had no other alleged misconduct or complaint against them since inception and there has been no violation of any principles of the CBLR committed by the appellants. It was also submitted that if the appellant was at fault, action should have been taken immediately after the detection of Red Sanders in the container and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both the sides. While considering this case, we have proceeded on the basis that even though it is a case of mere non-renewal of the licence, it has serious implications on the CHA since his work comes to a standstill. Having regard to the size of the appellant and the nature of the activities and the reasons for non-renewal, the early hearing application was allowed expeditiously which would not have been done in the normal course. 6. At this juncture we notice that the Commissioner while passing the order, had first of all taken note of the detection of Red Sanders in the container. Further he has taken note of the gist of the allegations against the CHA in the show-cause notice issued on 20.02.2010. The same is reproduced below for better appreciation: 26.G The Daily Dock Permits bearing nos. 1410261, 1412348 and 1415930 were got issued by CHA, M/s. SDV Airlink Ltd., i.e., M/s. SDV International Logistics Ltd., from the Port Authorities on behalf of M/s. SGEL. The permits mentioned the name of the transporter as M/s. East India Carriers instead of M/s. Pankaj Transport. The CHA should have enquired from M/s. SGEL about the change in name of transporter. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seal is in criminal conspiracy with the other persons. When enquired learned counsel submitted that no statement has been recorded by CBI from the employee against whom charge sheet has been filed. Further two of the employees of the appellant, whose statements were recorded, were not asked about the second bottle seal. When the main allegation is related to second bottle seal, it is seen that the process of obtaining second bottle seal and how far it was a deliberate action and would reflect adversely is not emerging clearly from the evidences available on record. There is no indication that there was any misdeclaration while obtaining the bottle seal. No question has been asked of the appellants or their employees as to why second bottle seal was obtained. Even the commissioner has not asked the appellants as to how and why this has happened. Prosecution of an employee would not result in closing down of the appellants business but non-renewal of the licence does. Prosecution of an employee has a consequence to him and his family alone. Non-renewal of licence has a consequence for not only the appellant but a large number of employees. Therefore this aspect should have been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal conspiracy, Sh Pulak Dey, Assistant Manager, Assistant Manager (C F), M/s. SDV International Logistics Ltd., on behalf of M/s. SDV International Logistics Ltd. (through its Director) dishonestly and fraudulently arranged Dock Permits at NS Dock, Kolkata for the vehicle no. WB39 4846, carrying container no. SIKU 2966294 now so containing red sanders, on the road challan of a fake, fictitious and non-existent firm Pankaj Transport even while the vehicle was registered at NS Dock in the name of East India Carriers. Sh Pulak Dey, Assistant Manager, Assistant Manager (C F), M/s. SDV International Logistics Ltd., on behalf of M/s. SDV International Logistics Ltd., (through its Director) also arranged for the entry Gate Pass for the lorry no. WB 39 4846 for final loading of the consignment of prohibited Red Sanders (Botanical Name Pterocarpus santalinus L) on the vessel Sinar Bima for onward journey for export to Singapore and also paid for the concerned charges against the Shipping Bill No. 5533712 dtd. 19.02.2009 presented by them. Such acts of obtaining a second bottle seal and getting the entry of the lorry no. WB 39 4846 operating on fake papers and on the road challan of a non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (178) ELT 22 (SC)], the Hon ble Supreme Court has held that 67. A statute ordinarily must be literally construed. Such a literal construction would not be denied only because the consequence to comply the same may lead to a penalty . In the case of Illachi Devi. [2003 Supp (4) SCR 62], the Hon ble Supreme Court has cited its earlier decision in the case of Gurudevadatta VKSSS Maryadit Vs. State of Maharastra [2001] 4SCC 534], to say that the golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the courts are bound to give effect to that meaning, irrespective of the consequences . Similarly, in the case of Union of India Vs. Dharamendra Textile Processors [2008 (231) ELT 3 (S.C)], the Apex Court held that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. In the case of Oswal Agro Mills Ltd., Vs. Collector of Central Excise [1996 (66) ELT 37 (S.C)], the Hon ble Supreme court has also held that Nothing is implied. Neither can we insert nor anything can we delete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges have been framed. Further the Commissioner seems to have come to the conclusion that vicarious responsibilities is on the appellant. No doubt it is so. But can it lead to a conclusion that there is a criminal case pending against the firm when a prosecution has been launched only against an employee is also a question which may have to be considered. This issue requires a more detailed consideration in view of the fact that it appears that prosecution is only against the employee and prima facie we have not found evidence to show the involvement of the appellants in loading/stuffing of red sanders. Therefore, at this stage, it may not be necessary to take cognizance of this issue. 11. As regards the two decisions cited by the learned counsel, the Commissioner has rejected both of them on the ground that there is a criminal prosecution pending. However in view of our observations regarding criminal prosecution, in our opinion both decisions cited by the learned counsel cover the present case. 12. In the case of Freight AG (P) Ltd., the Tribunal set aside the order declining renewal of licence as premature. In that case show-cause notice had been issued for revocation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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