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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 ..... f the case, punishment of revocation of licence under Regulation 20 of CHALR, 2004 should not be imposed on CHA M/s. Kamal Clearing & Forwarding Agency Pvt. Ltd.' following disapproval of the finding in the impugned order that '46. In view of the above discussions and findings, I find that though the CHA cannot be allowed to escape culpability for their lapses leading to violation of sub-regulation (a), (d), (e) & (o) of Regulation 13 of CHALR, 2004, as brought out above, the extreme punishment-of revocation of CHA licence is not warranted considering the facts and circumstances of the instant case especially since the licence has been under suspension for over twenty months. I am of the view that forfeiture of the entire Security Deposit tendered by the CHA is appropriate punishment in the context of the specific facts and circumstances connected with the instant case. For this, I wish to place reliance on the order of the Hon'ble High Court of Bombay in the case of M/s, S.S. Clearing and Forwarding Agency Pvt Ltd. Vs Commissioner of Customs (General), Mumbai [2011 (263) ELT 353 (Bom)] wherein the Hon'ble High Court maintained the order of the Commissioner of Customs (G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the licencing authority upon conclusion of proceedings under Customs House Agents' Licencing Regulations, 1994; the entitlement to do so has also been considered on earlier occasions by the Tribunal for dismissal of appeals similarly prosecuted in the past. 4. Like all such proceedings which privilege the 'servant' in a 'master-servant' relation alone to have appellate recourse against detriment to tenure and conditions of service, disciplinary proceedings against 'customs brokers', even if not in 'master-servant' relation but of 'creator-creature' equation that alters the terms of licenced right to practice an occupation, is governed by special law incorporated as section 146 of Customs Act, 1962. While establishing this institution for specific purposes, the Central Board of Excise & Customs (CBEC) was enabled to design the regulatory framework for 'customs brokers' to be licenced, supervised and terminated; the termination, and alteration of conditions of licence, was to be subject to appellate recourse, under section 146 of Customs Act, 1962 and in the Regulations too, at the instance of 'customs brokers' only. This was held so by the Tribunal in Commissioner of Customs (Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the author of its being, viz., the appointing authority, that there be a code of conduct which, when violated, brings retribution in the form of a penalty, that the entity who is sought to be proceeded against is served with charges, and supporting evidence thereof, which is subject to an enquiry as a pre-requisite for imposition of penalties. There is no scope for insinuating any higher authority to exercise superintendence over the appointing authority. 11. In terms of Customs House Agents Licensing Regulations, 1984 (which we are concerned with in the present instance), the power to license is vested in the Commissioner of Customs. That authority is, therefore, the 'master' to whom the agent owes its existence. It is the Commissioner of Customs who is responsible for the operation and functioning of the Customs House and any detriment to efficient functioning of the Customs House will ultimately reflect on that authority. There is no other authority more concerned with weeding out of unacceptable elements and, therefore, there is no cause for any other authority to sit in judgment on the decision of a Commissioner that continued operation of licensee is detrimental to the func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations framed thereunder.' 5. Nothing further would remain in this appeal except that Learned Authorised Representative submitted that an appeal filed against the said order is pending before the Hon'ble High Court of Bombay and that the general provision for appellate remedy under section 129A of Customs Act, 1962 cannot be abridged for which decision of the Hon'ble High Court of Madras in Commissioner of Customs, Chennai v. Freight Field (Madras) Pvt Ltd [2020 (373) ELT 78 (Mad)], with particular reference to, '46. In view of the aforesaid Judgment of the Karnataka High Court which we affirm and agree and in view of the reasons stated hereinabove, we are of the opinion that, no party in an adjudicating proceedings can be rendered remediless by way of appeal and if any such contrary view is taken by Courts of law, that will be detrimental to the basic structure as enshrined in our Constitution, i.e., Judicial review. Therefore our conclusion in this regard is fully forfeited by the aforesaid reason also.' on maintainability of appeals by the licencing authority against its own order before the Tribunal was cited. 6. We find that the issue had been agitated by an aggrieved ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HA under Regulation 20 on grounds which are stipulated in sub-regulation (1). The second is a suspension of the licence of an agent where immediate action is considered to be necessary by the Commissioner of Customs and where an enquiry is pending or contemplated. The third, which is a power to impose a prohibition in Regulation 21 operates to prevent an agent from working in one or more sections of a Customs Station. A prohibitory order under Regulation 21 does not constitute either a revocation of a licence or suspension of a licence. The effect of a prohibitory order under Regulation 21 is to prevent an agent from working in a customs station or in one or more sections thereof. Regulation 22(8) has provided for a right of appeal against an order of revocation of a licence or of suspension under Regulation 20 or Regulation 22(7). Regulation 22(7) operates in the area of the suspension or revocation of a licence. Thus, the subordinate legislation has contemplated an appeal against an order of revocation or suspension, but no appeal against an order of prohibition under Regulation 21 in respect of the area of one or more sections of a customs station. But, according to the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly construed with those of Section 146. There is no question, in our view, of there being any inconsistency between the two statutory provisions. Similarly there is no repugnancy between the provisions of Regulation 20(8) and Section 129A. Section 146 operates in a field different from Section 129A. Section 146 governs the licencing of CHAs and contemplates the making of regulations governing all aspects of the licensing of CHAs including disciplinary control. Remedies against orders passed in the disciplinary jurisdiction are to be provided in the regulations. The Regulations constitute a self contained code relating to the licensing of CHAs. The Regulations provide for disciplinary control over CHAs and have provided an appellate remedy against orders of revocation or suspension. An order of prohibition under Regulation 21, preventing a CHA from operating within one or more sections of a customs station is not subject to an appeal under the Regulations. The subordinate legislation has considered that such an order does not possess the consequence of either a revocation of a licence or for that matter, the suspension of a licence pending enquiry since such an order prohibits a CH ..... X X X X Extracts X X X X X X X X Extracts X X X X
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