9911796707
TMI Blog2017 (7) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, after considering the facts and circumstances of the case, materials taken behind the back of the respondent, the decision of the Andhra Pradesh High Court in Commissioner of Customs & Central Excise, Hyderabad-II Vs H.B. Cargo Services reported in 2011(268) E.L.T. 448 (A.P.), on proportionality, set aside the revocation of licence. 2. Short facts leading to the appeal are that the respondent is a Customs House Agent (In short, CHA ), licensed to deal with the processing of import and export of consignments for customs clearance. Certain investigations were carried out by the officers of Customs, during the year' 2006, regarding possible over-valuation of export products with the intent to avail ineligible draw-back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the date of impugned order, ie., on 13.05.2010. The respondent has further contended that the order of revocation travelled beyond the show-cause notice, subject matter of adjudication. Before the Tribunal, a contention has also been made that the order of revocation has resulted in loss of business for more than 10 years. 6. Objections were made by the appellant, stating that the respondent has been actively involved in processing, more than 400 shipping bills, which resulted in mis-declaration and loss to the Government, by way of ineligible export concessions. The respondent has not acted, as per the mandate, stipulated in CHALR, 2004. As violations were proved, revocation of license is legally sustainable. Regarding delay, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., two years after the conclusion of the inquiry, an Order-in-Original, dated 13.05.2010, has been passed by the Original Authority, revoking the licence and forfeiture of security deposit. 9. Thus, CESTAT, Chennai, has found that the Original Authority had traveled beyond the contents of the show cause notice and considered the materials behind the back of the respondent, to pass an order of revocation, which is held as violative of principles of natural justice. For the abovesaid reasons, CESTAT, Chennai, has set aside the Order of Original Authority. On the aspect of proportionality of punishment, the Tribunal has relied on a decision of the Andra Pradesh judgment in Commissioner of Customs & Central Excise, Hyderabad-II Vs H.B. Cargo S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s otherwise within the discretionary domain and sole power of the decision maker to quantify the punishment, once the charge of misconduct stands proved, is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment, which is grossly in excess of the allegations, cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied, while dealing with the question of quantum of punishment, would be: would any reasonable person have imposed such punishment in like circumstances? Obviously, a reasonable person is expected to take into consideration the measure, magnitude and degree of misconduct and all other relevant circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The proportionality question is of great significance as action is under a fiscal statute, and may ultimately lead to a civil death. [Falcon Air Cargo and Travels (P) Ltd. - 2002 (140) E.L.T. 8]. 10. Assailing the correctness of the same, the instant Civil Miscellaneous Appeal, has been filed on the following substantial questions of law, (1) Whether on the facts and circumstances of the case, the Appellate Tribunal has committed substantial error in law by setting aside the Order-in-Original and cancelling the revocation of CHA licence to the Respondent? (2) Whether on the facts and circumstances of the case, the Appellate Tribunal was correct in restoring CHA licence to the respondent, when Regulation 20(1) of CHA Licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved. Thereafter, a personal hearing was given on 07.02.2008, by the Commissioner. Pursuance to the report, dated 06.10.2006, no order has been passed. However, on 13.05.2010, the Commissioner of Customs, Cental Excise and Service Tax, Coimbatore, has revoked the license of the respondent and also forfeited the security deposit, furnished to the department. 13. Delay of four years, between the date of suspension, ie., on 15.02.2006, and the date of revocation order, ie., on 13.05.2010, lead to filing of an appeal before the CESTAT, Chennai and that the same has been disposed of on 13.06.2016, after 6 years. Therefore, as rightly observed by the Tribunal that the order of revocation has resulted in loss of business for more than 10 years. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
