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TMI Blog2001 (3) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... llenging the said order of the Commissioner (G) on the main ground that the order was made in breach of the principles of natural justice inasmuch as neither any show-cause notice was served on them nor any personal hearing was given to them before the order was issued. It was also contended by the appellants that the impugned order was not in compliance with the mandatory requirements of the CHA Regulations. 2. The Tribunal's West Zonal Bench (WZB) at Mumbai, which heard both sides at the stage of considering the appellants' application for stay of operation of the impugned order, noted, inter alia, that, in the case of Verma Sons v. Commissioner - 1999 (111) E.L.T. 565, it had been held by the Bench that the Commissioner of Customs was required to give due notice to the CHA before exercising the extraordinary power under Regulation 21(2) of the CHA Regulations. The Bench (in the present appellants' case) further observed that the views expressed in Verma Sons (supra) were basically sound but still required more intensive examination by a larger Bench in the interest of the Revenue. Hence the referral order of the WZB which brought up the matter before us. 3. Heard both si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, the Commissioner has not given to the appellants even a post-decisional hearing. Therefore, according to ld. Counsel, the Commissioner's order cannot stand the test of the rule of natural justice as laid down by the apex Court. 4.3 Ld. JDR Shri M.M. Dubey submitted that there was no express or implied requirement of observance of principles of natural justice by Commissioner for suspension of CHA licence under Regulation 21(2). Where immediate action was necessary, the Commissioner could suspend the licence without prior notice. Since it had been reported by the Preventive Commissionerate that the CHA had acted in collusion with exporters in defrauding the Revenue, the licensing authority deemed it to be an appropriate case for taking immediate action and accordingly suspended their licence for avoiding further mischief. The order suspending the licence was issued pending enquiry against the CHA. However, in this connection, when the DR was queried by the Bench as to what evidence was available on record to show that an enquiry under Regulation 23 had already been initiated against the appellants, he could not cite any evidence on record to that effect. The DR, however, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the proceedings and he may also put any question to any person tendering evidence, for or against the Customs House Agent, for the purpose of ascertaining the correct position. (4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings and where the Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the aforesaid inquiry, the Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings. (6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Assistant Commissioner of Customs and shall require the Customs House Agent to submit within the specified period not being less than sixty days any representation that he may wish to make against the findings of the Assistant Commissioner of Customs. (7) The Commissioner shall, after considering the report of the inquiry, and the representation thereon, if any, made by the Customs House Agent, pass such ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue, which we shall address next. 5.2 In Maneka Gandhi v. Union of India (supra) his Lordship, Bhagwati, J (speaking for himself and for their Lordships, Untwalia and Fazal Ali, JJ) held as under :- "The net effect of these and other decisions was that the duty to act judicially need not be super-added, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted." In the same case, his Lordship, Beg, CJ held as under :- "It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action." Sub-Regulation 2 of Regulation 21, in the instant case, contains no specific provision for showing cause against immediate suspension of licence, but since any such suspension ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, nor is it compulsory that oral evidence should be adduced. Indeed, it is not even imperative that written statements should be called for. Disclosure of the prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases, be sufficient compliance. It is in even conceivable that an urgent meeting with the concerned parties summoned at an hour's notice, or in a crisis, even a telephone call, may suffice. If all that is not possible as in the case of a fleeing person whose passport has to be impounded lest he should evade the course of justice or a dangerous nuisance needs immediate abatement, the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible. (emphasis added)" 5.4 According to the parameters of the rule of natural justice as set by the Hon'ble Supreme Court, a person against whom punitive or damaging action is taken by any authority in its quasi-judicial capacity must atleast be given the minimal fairness of a post-decisional hearing. In the present case, admittedly, the Commissioner has not given even such a hearing after passing the impugned order su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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