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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 ..... he misconduct reflects a chain of acts. In such a situation, we are disposed to think that the discretion exercised by the tribunal is inappropriate. Resultantly, we allow the appeal and set aside the orders of the High Court and the tribunal and restore that of the Commissioner. - Decided in favor of Revenue. - Civil Appeal No. 2940 of 2008 - - - Dated:- 14-1-2016 - Dipak Misra And N. V. Ramana, JJ. For the Petitioner : Ms. V. Mohana, Sr. Adv. Mr. B.V. Niren, Adv. Ms. Binu Tamta, Adv. Mr. B. Krishna Prasad, AOR For the Respondent : Mr. V M Doiphode, Adv. Mr. Rajesh Kumar, AOR Mr. Krishna Kumar R S, Adv. Mr. K K L Gautam, Adv JUDGMENT Dipak Misra, J. The respondent, M/s. K.M. Ganatra Co., was granted a Regular Customs House Agent (CHA) licence under Regulation 10 of the Customs House Agents Licensing Regulations, 1984 (for brevity 'the 1984 Regulations') framed under Section 146 of the Customs Act, 1962 (for brevity the Act ). While the respondent was carrying on the business, a letter was received from the Joint Director, DRI, BZU, Mumbai wherein it was mentioned that certain units based in Moradabad and Rampur area were misusing DEEC and DEP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the aforesaid order, the respondent preferred Appeal No. C/1135/06 - Mum before the Customs, Excise Service Tax Appellate Tribunal (for short, 'the tribunal'). The tribunal, by its decision dated 12.12.2006 opined thus :- We have considered the submissions. We find that it is an admitted fact that the appellant has allowed Shri Vipul Shah to crry on business on monthly rental basis or a consignment basis which has resulted in fraudulent exports by his client whose credentials were not lloked into by the CHA. This cannot be considered as a mere commission agent being employed by the CHA. In fact no authorization from the customer in favour of the CHA is on record and the copy produced by the appellant is without any date and there is no evidence that it was procured before taking up the business of the exporters in question. On the other hand the appellants contend that the same was recovered by the DRI but could not show any panchnama to that effect. We find that the tribunal has in the case of Noble Agency held that the statement of defence witness that employer for whom he was working did not have CHA licence and that he was using licence of the noticee CHA on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant and Mr. V.M. Doiphode, learned counsel for the respondent. 7. Learned counsel for the respondent submitted that the present appeal does not deserve to be considered in view of the grounds taken in paragraph 'G' of the special leave petition. The said ground reads as under :- G. That this Hon'ble Court, on similar facts involving violation of Regulations 12, 13(a), 13(b), 13(d), 19(8) of the CHALR in the case of Commissioner of Customs vs. Sri Prakash Gawade SLP (C) No.5375 was pleased to issue notice and stay the impugned judgment of the High Court vide order dated 16.03.2007. 8. It is urged by the learned counsel for the respondent that the said special leave petition which had given rise to Civil Appeal No.4520 of 2007 which has been dismissed, and therefore, the present appeal deserves to be dismissed. To appreciate the submission, we may reproduce the order dated March 24, 2014 dismissing the appeal. It reads as follows :- 1. We have heard learned counsel for the parties to the lis. 2. We find no merit in the Civil Appeal. Accordingly, the Civil Appeal is dismissed. However, the question of law raised is kept open to be agitated in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to have been granted or renewed in favour of the licensee and no licence shall be sold or otherwise transferred. 13. Regulation 14 deals with the obligations of Custom House Agent. The said Regulation, being pertinent, is reproduced below :- 14. Obligations of Custom House Agent.--A Custom House Agent shall: (a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as Custom House Agent and produce such authorisation whenever required by an Assistant Commissioner of Customs or Deputy Commissioner of Customs; (b) transact business in the Customs Station either personally or through an employee duly approved by the Assistant Commissioner of Customs or Deputy Commissioner of Customs, designated by the Commissioner; (c) not represent a client before an officer of Customs in any matter to which he, as officer of the Department of Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service; (d) advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges his duties as Custom House Agent with utmost speed and efficiency and without avoidable delay; and (p) not charge for his services as Custom House Agent in excess of the rates approved by the Commissioner from time to time under Regulation 25. Regulation 19 provides for maintenance and inspection of accounts. We have referred to the said Regulation as it casts number of obligations on the Customs House Agent. Regulation 21 deals with the suspension or revocation of licence. Regulation 23 deals with procedure for suspending or revoking licence under Regulation 21. It is apt to note here that the Central Board of Excise and Customs, in exercise of the power conferred under sub-section (2) of Section 146 of the Act in supersession of the Customs House Agents Licensing Regulations, 1984, except as respect things done or omitted to be done before such supersession, brought the 2004 Regulations. It is not in dispute that the investigation has been carried on, order has been passed under Regulation 20(c) of the 2004 Regulations. The said order of revocation was assailed before the tribunal under Section 129A read with Regulation 22(8) of the 2004 Regulations. Section 129B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings and submit his report within ninety days from the date of issue of a notice under sub-regulation (1). (6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than thirty days, any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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