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TMI Blog2024 (8) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... - BOMBAY HIGH COURT] . The Hon ble High Court of Bombay has, thus held that the limiting scope of appellate remedy in the Regulations governing customs brokers is deliberated restriction and that, in such circumstances, the general provision for appeal cannot be resorted to. The judgement of the jurisdictional High Court is binding here. Appeal dismissed. - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) And HON BLE MR AJAY SHARMA, MEMBER (JUDICIAL) Shri D S Mann, Deputy Commissioner (AR) for the appellant None for the respondent ORDER PER : C J MATHEW We are here concerned with forfeiture of security deposit under regulation 20 of the erstwhile Customs House Agents Licencing Regulations (CHALR), 2014 fastened on M/s Kamal Clearing and Forwarding Agency Pvt Ltd in order [ order no. 89/2013/CAC/CC(G)/PKA/CBS ( Admn ) dated 25th July 2013 ] of Commissioner of Customs (General), New Custom House, Mumbai that, though not source of grievance to the licence-holder, was cause of cavil to two Chief Commissioners of Customs who, drawing upon authority conferred upon designated Committee of Chief Commissioners under section 129D(1) of Customs Act, 1962, directed filing of this appeal with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held it to have been proved in full. These findings combined with the facts and circumstances surrounding the initiation of proceedings under Customs House Agents Licencing Regulations, 2014, according to the two Chief Commissioners, warranted revocation of licence. Thus, the issue before us is the commensurateness of the degree of detriment in the impugned order and not the penalty or the findings thereof. 3. The respondent was not represented at the hearing but from precedent decisions on maintainability of appeal of licencing authority against its own order and arguments on behalf of the appellant, the dispute was reserved for decision. In the meanwhile, the respondent filed a written submission enclosing order [order-in-original no. 04/COMMR/MS/PACE/ICD-PPG/2020 dated 28th August 2020] of authority adjudicating upon the offence of misdeclaration of value with intent to claim undue drawback , that led to initiation of proceedings for termination of licence against them, declining to impose penalties under section 114 and section 114A of Customs Act, 1962 and intimated acceptance thereof by the competent Committee of Chief Commissioners. This is, perhaps, the most compelling reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile an appeal to the Tribunal and a decision to retain the licence carries with it a finality that does not admit of any intervention under the Regulations. The licensing authority is not envisaged as an appellant under the Regulations. The absurdity of the proposition of appealing against oneself canvassed on behalf of the appellant will be dealt with in due course. 9. Licence holders are professionals who earn their livelihood by rendering services to the import and export community. The discontinuance of a licence, whether temporarily or permanently, is detrimental to the licencee, its employees and their dependents. Hence, akin to conditions of service of officers of Customs, the licensing regulations stipulate a procedure for revocation that is closely parallel to the disciplinary proceedings preceding any detriment to conditions of service. The relationship between a licensed customs house agent and the licensing authority is not much different from that of master-servant. 10. It is axiomatic that in all such proceedings, culminating in termination of such a relationship or is, in any other way, detrimental to the servant, the principles of natural justice require that the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lations, 1984 is a special provision contemplating appeal only to aggrieved licensee and that Revenue authorities cannot be discriminated against. Such a proposition does not appear to be congruent with legislative intent as the special provision itself is not warranted if general provision in Section 129A of Customs Act, 1962 could have been resorted by an aggrieved licensee. On the contrary, legislative intent is abundantly clear in empowering the Regulation making authority to provide for an appellate mechanism distinct from that enacted by the sovereign Legislature in the Customs Act, 1962 and the Regulation-framing authority has, in accord with the wisdom of generations, entitled only the licensee to appeal. As the sovereign Legislature has specifically empowered a separate appellate structure, the intent to deny the replication of the normal appellate remedy to the disciplinary authority against its own order is emphatic. We cannot countenance reading down the general provisions of review and appeal to apply to dropping of disciplinary proceedings against customs house agents in the face of specific and deliberate non-inclusion of such contingency in Section 146 of Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -(c) Whether Regulation 21 of the CHALR, 2004 is ultra vires the provisions of the Customs Act, 1962. answered thus 12. The procedure for suspending or revoking a licence under Regulation 20 is specified in Regulation 22. Broadly speaking, Regulation 22 requires the issuance of a notice to show cause, an opportunity to file a written statement and the holding of an enquiry in the course of which evidence can be produced. At the conclusion of the enquiry, a report is prepared, a copy of which is to be furnished by the Commissioner to the CHA who has a further opportunity to make a representation. Thereupon, the Commissioner is empowered to pass an order thereon. 13. Regulation 22(8) provides as follows: (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. Regulations 20, 21 and 22 contemplate three separate eventualities. The first, which is the most drastic, is the power to revoke the licence of a CHA under Regulation 20 on gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r carrying on business within a customs station involving import or export of goods or entry or departure of a conveyance. The entire subject matter of the licensing of CHAs which commences from invitation of applications and covers qualifications of eligibility, the holding of examinations, award of licences, obligations of CHAs and disciplinary control are governed by the regulations. Section 146(2) contemplates that the Regulations are intended to fulfill the purpose of carrying out of the provisions of the section. That the Regulations may also govern the remedies which are available to a CHA against an order passed in the disciplinary jurisdiction is made abundantly clear by clause (f) of Section 146(2). Section 146(2)(f) clarifies by way of illustration that the Regulations can govern the appeals, if any, against orders of suspension or revocation. If recourse to the general power of an appeal under Section 129A was intended by Parliament to be available in disciplinary matters involving CHAs, there was no necessity of including a provision such as that which is contained in Section 146(2)(f). The provisions of Section 129A have to be harmoniously construed with those of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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