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TMI Blog2016 (2) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ible Duty Entitled Pass Books (DEPBs) or for fulfilling the export obligations against advance licences under Duty Exemption Entitlement Certificate (DEEC) Scheme, and to obtain waiver of BG conditions against the DEEC Licence as per the Exim Policy, though in reality no physical export of goods was taking place. In essence, the communication was to the effect that documents were fabricated to show that goods were exported. 2. On the basis of the aforesaid information, investigations were initiated and certain firms were identified which were involved in the misuse of the licence in the aforestated manner. During the investigation it was found that an endeavour had been made to give the impression that they were bona fide exporters. The shipping bills were filed and for the said purpose, services of CHA licence of the respondent licensee was utilised. It had further come to the notice of the authorities that after due investigation and interrogation, it had allowed its licence to be used by certain unauthorised persons for monetary consideration. After the said aspect came to light, the licence was suspended under Regulation 21(2) of the 1984 Regulations and an enquiry was held ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th in the case of Nanda International Vs. Commissioner of Customs, Chennai - 2004 (176) I.L.T. 524 (Tri. -Chennai) the only difference being that since in latter case the licence remained revoked for a period six years & therefore, a lenient view was taken and the licence was restored though forfeiture of security deposit was upheld. In the instant case, we find that the licence has been suspended for the last two years and has now been revoked permanently. We consider it too harsh a punishment as it deprive the CHA of his livelihood. We consider that revocation for a period of three years from the date of suspension of licence (i.e. 1.3.2004) would be sufficient and on expiry of three years licence may be restored on taking fresh security deposit as we confirm the order of the Commissioner in forfeiting the security deposited by the appellant earlier." We have reproduced the said paragraph only to highlight that though the tribunal has taken into consideration the admissions made by the respondent, findings recorded by the Commissioner and the act of violation by the respondent, yet it has exercised the discretion by directing restoration of the licence after the expiry of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder that the two-Judge Bench, while dismissing the appeal, has kept the question of law open. The question of law raised is where there is transfer of licence and as a matter of fact the same is established in addition to the fact that the licensee is a habitual offender in the same manner, whether the tribunal should exercise the power under the Regulations to modify the action taken by the competent authority. That being the issue raised in this appeal, we have noted the said aspect first. We are unable to accept the submission of the learned counsel for the respondent and, therefore, we shall proceed to address the issue on merits. 10. It is submitted by Ms. Mohana, learned senior counsel appearing for the revenue that when it has been established after conducting the necessitous investigation that the licensee has violated the terms of the licence and the Regulations and it habitually involved in the similar kind of activity, the discretion of the tribunal was totally uncalled for. It is urged by her that whenever a statutory authority is conferred with the jurisdiction for modifying an order, appropriate reasons have to be ascribed and it should not be done without proper as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lient with reference to any work related to clearance of cargo or baggage; (f) not withhold information relating to clearance of cargo or baggage issued by the Commissioner of Customs from a client who is entitled to such information; (g) promptly pay over to the Government, when due, sums received for payment of any duty, tax or other debt or obligations owing to the Government and promptly account to his client for funds received for him from the Government or received from him in excess of Governmental or other charges payable in respect of the clearance of cargo or baggage on behalf of the client; (h) not procure or attempt to procure directly or indirectly, information from the Government records or other Government sources of any kind to which access is not granted by proper officer; (i) not attempt to influence the conduct of any official of the Customs Station in any matter pending before such official or his subordinates by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing of value; (j) not refuse access to, conceal, remove or destroy the whole or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." Regulation 22 of the 2004 Regulations reads as follows : "22. Procedure for suspending or revoking licence under Regulation20.--(1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-regulation (5). (8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act." 14. Relying on the statutory provisions, it is submitted by learned counsel for the respondent that the tribunal has jurisdiction to confirm, modify or annul the decision. There can be no cavil over the issue that the tribunal can dislodge or confirm or modify the order. The vesting of jurisdiction with the tribunal by the statute is beyond any pale of controversy. The dispute pertains to exercise of such jurisdiction. When a jurisdiction is exercised, it has to be exercised in accordance with law, regard being had to the factual matrix of the case. The tribunal having been conferred the power to modify the order, restricting the period of revocation would definitely come within the sweep of the said power. The issue would, as stated earlier, be whether the said jurisdiction has been properly exercised in the case at hand. On a perusal of the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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