Per Moheb Ali M.:

The appeal arose out of the order passed by the Commissioner of Customs (General), Mumbai, wherein he suspended the appellants CHA licence under Regulation 21(2) of the Custom House Agents Licensing Regulation, 1984 (hereinafter referred to as 'CHALR, 1984'), pending enquiry under Regulation 23 of the CHALR, 1984. In the impugned order, the Commissioner observed that one Shri Hitesh Parmar holding kardex No. P-2029 of CHA No. 11/1099 (the appellants firm) had provided Custom House service to an exporter without knowing the exporters nor their office address. The Commissioner also observed that the said Parmar did not even know the address of the CHA nor did he know where the proprietor of the CHA stays. Shri Parmar seems to have admitted that he was using the CHA licence given to the appellants for monetary consideration, and the profit earned by using the said licence was shared on half-half basis with the proprietor of the CHA. The kardex holder (Parmar) had committed other irregularities also while filing shipping bills on behalf of M/s. Al Heena Enterprises, Mumbai. Stating these facts, the Commissioner held that the appellants have violated Regulations 13, 14(a), 14(d), 14(e), 14(f), 14(k), 14(1), 14(o) and 20(7) of the CHALR, 1984. In exercise of the powers vested in him under Regulation 21 (2), the Commissioner had come to the conclusion that it was necessary to curb immediately the activities of the CHA as it would otherwise lead to damage of Government revenue. The licence was thereupon suspended.

2. We have earlier granted the miscellaneous application from early hearing by the appellants and fixed the appeal on 14.11.2003. The appellants pleaded that the kardex holder even though is an employee of the appellants, has acted in a manner prejudicial to the interest of the appellants without their knowledge. The kardex holder's activities were never approved by the appellants. The Commissioner suspended the CHA licence on 26.8.2003 whereas the export consignment related to 16.9.2002. In other words, the incident of misconduct on the part of the kardex holder took place on 16.9.2002 and it is only after 11 months the appellants' licence was suspended. Thus, the provision under Regulation 21(2), which calls for immediate action so as to prevent damage of Government revenue, does not exist in this case. The appellants further argued that the department can always proceed with the action under Regulation 23 of the CHALR, 1984 without suspending the licence of the appellants.

3. We observe that the CHA licence of the appellants has been suspended on account of the misconduct of their employee while attempting to export a consignment on 16.9.2002. The statement recorded at the time of the incident showed that Parmar did not inform the appellants that he was handling an export consignment. He seems to have handled the consignment for a remuneration of Rs. 155/- per shipping bill. He also stated that he shared the profit with the CHA when he did clearing vork on his own. All these facts have come out in the order of the Commissioner suspending the licence.

4. There are extenuating circumstances in this case as to why the licence need not be suspended under Regulation 21(2). For one thing, the employee has acted in such a manner that the employer (the appellants) was kept completely in the dark and for another, no statement of the appellants was that recorded by the investigating authority at any stage. While action under Regulation 23 can always be taken, we observe that there is no need to suspend the licence nearly after 11months of the incident.

5. We, therefore, set aside the order suspending the appellants' licence. However the department is free to conduct the proceedings under Regulation 23 and take action as deemed fit.