9911796707
TMI Blog1998 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. (hereinafter referred to as `R.N.J.') imported various consignments of [Polystyrene] (P.S.) under advance licences issued by the Controller of Imports and Exports under Duty Entitlement Exemption Certificate. After clearing consignment, imported by R.S.I. Engineering Pvt. Ltd., the petitioners under instructions of the said R.S.I. kept the goods at the godown of the Central Warehousing Corporation and the goods were taken delivery and/or cleared by the importee R.S.I. who arranged for such delivery and/or clearance. In respect of the importation of 155 M.T. of P.P. by the R.S.I. under a bill of entry, the Authority initiated action against the said R.S.I. and their associates and implicated the writ petitioners in the said proceeding. The goods however, were cleared by the said R.N.J. export and the goods were taken delivery by R.N.J. from the docks of the Calcutta Port. The writ petitioners however, received a demand-cum-show cause notice dated 12th of August, 1994 from the Additional Collector of Customs (Preventive) under Section 112A of the Customs Act, 1962, in respect of the importation made by the R.S.I. under the Bill of Entry dated 18th January, 1994. In the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e licences of the writ petitioners issued by the Customs Authorities should not be revoked under Regulation 23 of the 1984 regulation. The validity of the licence of the writ petitioners was to expire on 2nd of December, 1995. For renewal of the said licence for a further period of 5 years the writ petitioners made an application before the Customs Authority, a copy of which has been annexed to the writ petition. When the writ petitioners had applied for renewal of licence, the respondents by their letter dated 13th December, 1995 wrote the petitioners to submit reply to the complaints of misconduct made against them for non-compliance of the obligations under Regulation 14 as given in the annexures enclosed to the said letter. The writ petitioners submitted their representation by their letter dated 22nd December, 1995, 4th of January, 1996 and 7th of March, 1996. On or about 6th of May, 1996, the writ petitioners received the order dated 29th March, 1996 whereby the respondent No. 1 rejected the application for renewal of the licence of the writ petitioners. In the said order, the respondent No. 1 categorically stated that he was not adjudicating upon the allegations made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1965, I am of the view that the argument of Mr. Banerjee that an appeal lies under Section 129A(1)(a) of the Customs Act against the decision of the Additional Collector of Customs cannot be supported. In order to appreciate the rival submissions on this question, it would be necessary for me to deal with the provisions of the Act and also the regulations. Section 146 of the Customs Act provides that a Customs House Agent shall be licensed. Sub-section 2 of Section 146 empowers the Board to make regulations for the purpose of carrying out the provisions of this Section as regards : (a) licensing authority (b) forms of and fees for licence (c) qualifications of the holders of licence and his employee (d) restrictions and conditions for the licence (e) suspension and cancellation of licence (f) appeals against such suspension and cancellation. Section 129A provides for filing appeals to the Appellate Tribunal against the orders passed by the Authorities, particulars of which have been mentioned in Sections 129A(1)(a) to (d) of the Act. In the exercise of the powers conferred by sub-section 2 of Section 146 of the Customs Act, 1962, the Central Board of Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese regulations, whether within the jurisdiction of the said Commissioner or anywhere else. (c) any misconduct on his part whether within the jurisdiction of the said Commissioner or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the customs station. Regulation 23 prescribes the procedure for suspending or revoking licence under Regulation 21. Regulation 23(8) empowers an aggrieved Customs House Agent to make an appeal under Section 129A of the Customs Act to the Appellate Tribunal if such agent is aggrieved by any decision or order passed under Regulation 21 or sub-regulation 7 of Regulation 23. At this stage, it is also necessary to quote 23(7) of the regulation which is as follows :- "The Commissioner shall after considering the report of the enquiry and the representation thereon, if any made by the Customs House Agent, pass such orders as he deems fit." 6. From a comparative analysis of the aforesaid provisions made in a regulation and also in the Act, let me now consider whether the order passed by the Additional Collector of Customs comes within the Regulation 23(8) of the Regulations or not. As noted herein earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his writ application. As noted herein earlier, the order refusing to renew the agent's licence which had expired on 13th of November, 1995, by the Collector of Customs is under challenge in this writ application. There is no dispute that the application for renewal of the licence was admittedly made before the time that is to say before the expiry of the period of the licence of the writ petitioner. On 13th of December, 1995, first a show cause notice was issued in respect of the renewal application alleging misconduct and non-compliance with the obligations under Regulation 14 of the said Regulation. This show cause notice has been annexed to the writ petition. From a plain reading of the show cause notice, it appears that the allegations were founded in the following manner :- (a) The agent had acted without the authority. (b) The agent had made over to persons not entitled to receive without proper challans and documents. (c) The writ petitioner and Sri Dutta allowed one Chandan Ghosh who was admittedly not an employee of the concern to deal with the materials and the said Chandan Ghosh was an employee of an unauthorised buyer. (d) The writ petitioners abetted and ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. (f) Function of the agent was explained and the writ petitioners claimed that they had nothing to do with the alleged illegalities. (g) Bhaya admitted that Chandan Ghosh was an employee of Damani and was engaged by them to act on behalf of the R.S.I. This admission was also made by Damani. (h) It was not within the knowledge or control of the clearing agents (writ petitioners) whether imported materials were delivered to supporting manufacturers. (i) Central Warehousing Corporation did not make any allegation against the writ petitioners relating to mis-delivery. (j) Use of Rubber Stamp by Chandan Ghosh was a mystery. It was alleged that anyone could make such Rubber Stamp. (k) The writ petitioners were not agents for corresponding exports and had no opportunity to verify the discharge obligations. (l) The writ petitioners had no obligation to ensure how, where and when and the way the importer dealt with the goods after they had cleared the goods properly from the Customs. (m) The case of misconduct and non-compliance with regulations as made in the show cause notice were also denied by the writ petitioners. On 1st of March, 1996, a further lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber, 1995. 3. To the show cause notice dated 1st of March, 1996 and to the replies of the writ petitioners dated 22nd December, 1995 and 4th of January, 1996. 10. From a reading of the said order, it also appears that an observation was made by the Collector of Customs that in considering the application for renewal, he had not adjudicated the alleged contravention of provisions of law and considered only the question of renewal under the Regulation. The Authorities relied on the statement of Mr. Dutta made on 17th February, 1994 and also the statements made in the earlier petition were considered. It was found that the agents were in fact, authorised and also referred to several instances where Chandan Ghosh had been acting. It was further found that Jayanta Das had given the authority and that he had a competent officer of the Agents. The Authority also found that the rule of the agents in aiding and abetting the importer in disposal of the imported materials by allowing Chandan Ghosh, not an employee of the agent to operate for and on their behalf using their challans, Rubber Stamp and delivery order was fully established. The Authority also found that secret codes were expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a rubber stamp of the agents. The Commissioner of Customs also came to a conclusion of fact that on enquiry from the warehouse, it was found that Chandan Ghosh had signed for and on behalf of the agents as depositors of the goods on the stamp of the agents several delivery orders, the particulars of dates were mentioned in the impugned order itself. On consideration of the entire materials on record, the Commissioner of Customs came to a conclusion of fact that the goods made out by the agents as to their ignorance and as to their non-involvement relating to the storage of the goods at the warehouse and delivery therefrom through Chandan Ghosh could not be believed. On such consideration of facts, the Commissioner of Customs came to a conclusion that the agents had abetted in disposal of the imported goods by allowing Chandan Ghosh to function as their employee and to use their rubber stamp and give instructions on their behalf to the warehouse. This finding of fact, according to Mr. Mukherjee, was a perverse one. I am unable to agree with Mr. Mukherjee. In my view, the finding arrived at by the Commissioner of Customs was passed on consideration of the materials on record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments, obtained from the warehouse. On consideration of the above factual matter, the Commissioner of Customs came to a conclusion of fact that the stand taken relating to complete ignorance as to Chandan Ghosh in the replies dated 22nd December, 1995, 4-1-1996 and 7-3-1996 was wholly unbelievable and cannot be accepted. Upon the aforesaid consideration, it was held by the Commissioner of Customs that the rule of the agents in aiding and abetting the importer in disposal of the imported goods by allowing Chandan Ghosh who was not an employee of the agents to operate for and on their behalf using their challans, rubber stamp and delivery orders was fully established. The Commissioner of Customs also came to a conclusion of fact that the general sweeping allegation that statements was made under duress or threat could not be taken into consideration in view of the facts and evidence and materials on record as discussed in the impugned order. From the discussion made in the impugned order and from the entire findings arrived at by the Commissioner of Customs, it was concluded in the impugned order that the question of renewal of the licence could not arise in view of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in the exercise of jurisdiction under Article 227 of the High Court can set aside or ignore the findings of fact of an inferior Court or Tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or Tribunal has come to, or in other words it is a finding which was perverse in law. Except to the limited extent indicated above, the High Court has no jurisdiction to interfere with the findings of fact. 12. In view of the aforesaid decisions of the Supreme Court and in view of the discussions made hereinabove that the findings of the Commissioner were not perverse one, it is not open to me to interfere with the said findings of fact in the exercise of my power under Article 226 of the Constitution. 13. For the reasons aforesaid, there is no reason to interfere with the order impugned in this application under Article 226 of the Constitution. 14. Accordingly, the writ petition fails. 15. There will be no order as to costs. 16. Let a xerox copy of this judgment duly countersigned by the Assistant Registrar of this Court be given to the parties upon their undertaking to apply for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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