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TMI Blog2000 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... s actually handled the import who was erstwhile partner of the partnership firm. 5.Shri Milan Gupta, the petitioner no. 2 being partner of the petitioner no. 1 admitted that he had allowed one Shri A.K. Sinha to use the stamp of clearing house agent for the purpose of clearance of the imported consignments of M/s. Chandra Overseas to whom Shri Sinha was representing. Shri Milan Gupta categorically stated that he used to get a sum of Rs. 300/- per bill of entry in respect of goods cleared by Shri A.K. Sinha. 6.Mr. Debashis Mukherjee is a person who has directly handled the imported consignments of M/s. Chandra Overseas. Mr. Mukherjee had further stated in his statement that Mr. A.K. Sinha was his employer and Mr. Sinha was not the partner of M/s. Orient Clearing Forwarding Agency. From the prima facie investigation it is clear that M/s. Orient Clearing Forwarding Agency in connivance with Mr. A.K. Sinha, Mr. Debashis Mukherjee and Mr. Chandra Prakash Sharma took active part in manipulation of import consignment resulting in loss of huge Government revenue. Whereas Mr. Milan Gupta one of the partners of M/s. Orient Clearing Forwarding Agency has admitted that he is getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any business in the customs station. Notwithstanding anything contained in(2) sub-regulation (1) the Commissioner may, in appropriate cases, where immediate action is necessary, suspend the licence of a Custom House Agent where an enquiry against such agent is pending or contemplated." 9.The regulations as aforesaid are sub-divided into two sub-regulations. From the first part it appears that the Commissioner may, subject to the provisions of Regulation 23, suspend or revoke the licence of a Custom House Agent for various failures which are indicated above. Second part speaks that notwithstanding anything contained in Sub-regulation (1), the Commissioner may, in appropriate cases, where "immediate action" is necessary suspend the licence of a Custom House Agent where an enquiry against such agent is pending or contemplated. 10.The petitioners argued before this Court that the Customs House Clearing Agent is a firm but not an individual. Therefore, if any erstwhile partner or any present partner is committed any mistake that would amount to an individual action not an action on the basis of the firm as a whole. Moreover, an investigation have been made on the basis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Customs Act ordinarily come to an end with clearance of the imported goods and their delivery to the importer/owner. Therefore, service of the notice on the clearing agent thereafter not construable as a valid service on the importer/owner. Possibly the case was cited with a hope that since the petitioner no. 1 cleared the goods, no further responsibility lies on them for which they will be answerable and fare notice of suspension is served at the belated stage. However such submission is not acceptable in the present case since in that case question of demand of the authority about short levy was made upon the importer after the period of limitation wherein service was effected upon the clearing agent by saying agent has obligation about the same but the Supreme Court did not accept the same since the liability of agent was discharged upon delivery of the goods to the importer. 16.In 1990 (45) E.L.T. 72 (Calcutta) (Collector of Customs v. Jeena and Company) it was held by a Division Bench that power under Regulation 21(2) has given the Collector a very wide discretionary power to suspend the licence of a Customs House Agents. While taking such action, the Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o further supportive value is forthcoming in this case. Therefore this is a very weak case, however, court has a bounden duty to analyse the position before coming into conclusion. 22Regulation 21(2) cannot be confined to the rigidity. of the words "immediate action" alone. It has to be considered in the proper prospective because other relevant words are important for the purpose of coming to an appropriate conclusion in this respect which are as follows : "Notwithstanding";I. "In appropriate cases";II. "Where an enquiry against such agent is pendingIII. or contemplated"; Therefore, the word "immediate action" cannot have any independent leg to stand unless it is fit in the circumstances in respect of all or either of the conditions as above. 23.If I analysis the fact situation, the word "notwithstanding" is clearly applicable which is otherwise meant irrespective of applicability of Regulation 21(1) as it has done in the instant case. Secondly, this case cannot be treated as an inappropriate case as I have already dealt with and as reasons are given under the impugned orders. Thirdly, "immediate action" is necessary where an enquiry against such agent is pending o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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