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2011 Supreme(Guj) 212
2011 (2) GCD 982 (Guj) (DB)
Hon’ble Ms. Justice Harsha Devani &
Hon’ble Ms. Justice Bela Trivedi
Ota Kandla Pvt. Ltd.
Versus
Union of India - Secretary Government of India - Finance Dept. & Ors.
Special Civil Application No. 12051 of 2003—Decided on 31/03/2011
Appearance :
Mr. D.C. Dave, for the Petitioner No. 1.
Mr. P.S. Champaneri, for the Respondent No. 1 - 3.
Point in Issue :
Whether in the fact of the case revoking the licence of petitioner as Custom House Agent justified.
Headnote:Head Note :
Customs Act, 1962 (Central Act 52 of 1962) — Section 108 — Customs House Agents Licensing Regulations, 1984 — Regulations 13, 14(b), 20(6), 21, 21(b)(c), 21(2), 23 and 124 — Licence as Custom House Agent (CHA) — Revoking of — Committing breach of statutory regulations and misconduct by misusing it’s licence — Finding of — And also punishment award — Sustainability — From the record it clearly transpires that both the authorities i.e. the Commissioner of Customs and Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) after thoroughly decreasing evidence as regards the charge of misconduct levelled against petitioner had come to the conclusion that all the said charges were duly proved against petitioner — There appears to be no error in the said finding, therefore, imposing of punishment on petitioner is sustainable — The contention of petitioner that punishment de hors the doctrine of proportionality is not acceptable in the facts of the case — there is no perversity or unreasonableness in the impugned order of respondent authorities warranting any judicial interference.
Held :
It clearly transpires that both the Authorities i.e. the Commissioner of Customs and the CEGAT, after thoroughly discussing the evidence as regards the charges of mis-conduct levelled against the petitioner, had come to the conclusion that all the said charges were duly proved. It is pertinent to note that though the two Members of CEGAT had differed on the issue of imposition of punishment i.e. revocation of licence, both had concurred with the findings on the establishment of charges against the petitioner inter alia that the petitioner had transferred its licence by sub-letting the same to M/s. Prabhat Kiran Mariners in violation of Regulation 13 of the said Regulations and that the petitioner did not maintain the statutory records and thereby contravened Regulation 19 of the said Regulations and that the petitioner obtained custom pass for the persons who were not its employees and permitted the employees of M/s. Prabhat Kiran Mariners to use the same before the Custom Authorities for its monitory gain, in violation of Regulation 14 (b) and 20(6) of the said Regulations. The charges against the petitioner that the said imported goods of the Importer were removed through the West Gate instead of North Gate of the Kandla Port in contravention of Regulation 14(a), without obtaining authorization from the Importer in respect of the consignment, were also held as proved. These findings of the respondent Authorities on the charges levelled against the petitioner, are arrived at by the respondents after considering all materials on record. The learned Advocate Mr. Dave for the petitioner has failed to point out any error in the said findings. Even otherwise, the said findings being findings of facts, this Court exercising writ jurisdiction is not inclined to re-evaluate the evidence or sit in appeal over the said findings. [Para 9]
The judicial review of administrative action or of proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable, irrational or suffering from any procedural impropriety, and that the High Court in exercise of jurisdiction under Article 226 or 227 should not interfere with the legal orders of Administrative Authorities. So far as the facts of the present case are concerned, as stated hereinabove, Respondent No. 3 – the CEGAT has upheld the order of Respondent No. 2, revoking the licence of the petitioner as CHA on the ground of petitioner having committed breach of statutory regulations and the misconduct by misusing its licence. In the opinion of this Court, once the decision of the respondent Authorities that the petitioner committed violation of statutory regulations and the misconduct is found to be within the legal parameters, all the legal consequences as a result of such violation and the breach have to follow. The case of the petitioner being the case of contravention of said regulations and misuse of licence as CHA, the respondent Authorities have rightly revoked the licence of the petitioner. The said decision having been arrived at by the respondents, after taking into consideration all relevant material and the said Regulations, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational. Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment de hors the doctrine of proportionality. [Para 14]
Law Laid Down :
Proportionality involves ‘balancing test’ and ‘necessity test’.
Ms. Bela Trivedi, J.—The petitioner has preferred the present petition under Articles 226 and 227 of the Constitution of India challenging the judgments and orders passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai (hereinafter referred to as ‘ the CEGAT’) in Appeal bearing No. C/195/01-Mum, whereby the CEGAT had dismissed the Appeal of the petitioner and confirmed the order passed by the Commissioner of Customs, the Respondent No. 2 herein, revoking the licence of the petitioner as the Custom House Agent (CHA).
2. Heard learned advocate Mr. D.C. Dave for the petitioner and learned Assistant Solicitor General of India Mr. P.S. Champaneri for the respondents.
3. The short facts giving rise to the present petition are that the petitioner is a company incorporated under the Companies Act, engaged in the business as CHA since 1949, having its offices at New Delhi, Calcutta, Paradip and Haldia. As per the case of the petitioner, in the month of December – 1997 or thereabout, one R.P. Bansal & Company of Agra (hereinafter referred to as ‘the Importer’) approached the petitioner through one Sunil Kothari of M/s. Prabhat Kiran Mariners, a proprietorship concern, of one Mr. Parag P. Mehta, and requested the petitioner to act as Custom House Agent for handling the clearance of one consignment of 105 MT of gypsum (hereinafter referred to as ‘the said goods’) at Kandla Port. Accordingly, the petitioner agreed to act as CHA for the Importer and precipitated the course of action for filing the requisite bill of entry on 8th December 1997, bearing the Number 10377. It is further the case of the petitioner that after complying the necessary formalities for the clearance of the said goods, the petitioner informed the said M/s. Prabhat Kiran Mariners for taking requisite steps for taking the delivery of the said goods from the authorities of Kandla Port, inasmuch as the said M/s. Prabhat Kiran Mariners were to act as the forwarding and transporting agents for and on behalf of the Importer. Accordingly, the requisite gate pass was prepared on 22nd December 1997 for the purpose of securing removal of the said goods from the North Gate of Kandla Port by the said forwarding and transporting agent of the Importer. At the relevant time, the Custom Authorities did not permit the removal of the said goods from the North Gate and the said Mr. Sunil Kothari was required to precipitate the course of action for seeking permission of Custom Authorities for removal of the said goods from the West Gate in place of the North Gate of Kandla Port. Accordingly, the said goods were removed from the West Gate of Kandla Port on 23rd December 1997.
4. It is further case of the petitioner that thereafter on the basis of the interim report received by the Custom Authorities suggesting that the said goods were “gypseous alabaster” in place of “gypsum”, an inquiry was undertaken by the Custom Authorities at Kandla Port, wherein the statement of the Subhash Shethi, Executive Director of the petitioner, Mr. Sunil Kothari of M/s. Prabhat Kiran Mariners, etc. came to be recorded under Section 108 of the Customs Act, 1962 (hereinafter referred to as ‘the said Act’). The premise of the said inquiry was to the effect that “gypseous alabaster” was prohibited for import and therefore the said goods had become liable for confiscation. On the basis of the said inquiry, the Respondent No. 2 herein passed an order dated 26th February 1998 under the provisions contained in Regulation 21(2) of the Customs House Agents Licensing Regulations, 1984 (hereinafter referred to as the ‘said Regulations’), suspending the licence of the petitioner as CHA pending the detailed inquiry in to the matter. Thereafter, the petitioner made a representation to the Respondent No. 2 seeking revocation of the said order of suspension of the licence, however, the Respondent No. 2 did not accept the said representation of the petitioner and continued the suspension of the licenc
