TMI Blog2011 (11) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ed commodity and consequently that of petitioner in violating regulations, as discussed. Petition, therefore, deserves no meritorious consideration – Decided against the petitioner - 12517 of 2011 - - - Dated:- 17-11-2011 - Akil Kureshi, Sonia Gokani, JJ. Hasit Dilip Dave for the Appellant P.S. Champaneri for the Respondent JUDGEMENT Sonia Gokani: Challenge in this writ petition is to the order of the respondent no.2 dated 1st June 2011 whereby, it has prohibited the petitioner from working as CHA agent at Pipavav Port. Following are the brief facts of the present petition preferred under Articles 226 and 227 of the Constitution of India. Petitioner is a registered Customs House Agent to work as Customs House Act ["CHA" for short] at Customs House, Kandla and Mundra under regulation 9(2) of the Customs House Agent Licensing Regulations, 2004 [to be hereinafter referred as, "the regulations"]; on the basis of license granted by the parent CHA, being the Commissioner of Customs, Jaipur. Pursuant to some DRI investigations on various parties; including one Messrs. Dadi Impex Private Limited, Mumbai - an Exporter, who was allegedly found in attem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation made is to the effect that the petitioner was found involved in sub-letting his CHA license to one Mr. Kamal Inderraj Gurnani in contravention of the provisions of the Regulations. When the Directorate of Revenue Intelligence booked a case of attempt to export MOP in guise of free-flow salt against an exporter-M/s. Dadi Impex Private Limited, Mumbai, the investigation revealed that one Shri Anand Prakash Choudhari asked Shri Kamal Gurnani to arrange and handle the work pertaining to transportation of stuffing; central excise formalities and customs clearance in respect of illegal exportation of MOP from Mundra. Shri Gurnani is not having CHA license but contacted the employee of the present petitioner through one Shri Brijesh Advani. The two of the employees of the present petitioner at Gandhidham office viz., Shri Mahesh Tank and Shri Sandip Solanki were issued the cards and their involvement made it possible this illegal export. IT is also alleged that without contacting any person from M/s. Dadi Impex Private Limited; without obtaining any authorization of the said company, the work was attended to. This was in clear violation of Regulations 12, 13, 19 (8), etc. It is fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, learned counsel for the petitioner was asked whether the petitioner would prefer a post decisional hearing before the Commissioner of Customs to which there was a denial stating that no such hearing is desired by the petitioner. Instead, the petitioner desired this court to go into details of facts unearth by the Directorate of Revenue Intelligence. Mention is necessary at this stage that without going into the larger question of scope of Regulation 21 and whether hearing is contemplated either at the pre-decisional or post-decisional stage in the Regulation, in light of the discussion to be followed hereinafter, this petition is being decided. In this premise, when the entire scheme of regulations is examined, it clearly gets revealed that Regulation 13 read with Regulation 19 (8) would make it obligatory on the part of the CHA to be responsible for the action of its employees. Regulation 12 provides that CHA license is not transferable and Regulation 19 (8) prescribes that CHA should exercise such control/supervision as may be necessary to ensure proper conduct of such employees in transaction of business as CHA and he be held responsible for all acts or omissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing those matters independently under the provisions of law. The issue before this Court is limited to the order of prohibition passed by the Commissioner of Customs under Regulation 21. As the post decisional hearing afforded to the petitioner is not acceptable; as mentioned hereinabove, the only question requiring indulgence is whether order of prohibition is based on no materials. Considering entire gamut of facts and overall circumstances as well as details of the case filed by DRI, we are of the opinion that neither the order of CESTAT of not entertaining the appeal of the petitioner warrants any interference nor could we accede to the request of the petitioner to quash the order of prohibition passed by the Commissioner of Customs. The decision sought to be relied upon by the learned counsel is of Babaji Shivram Clearing and Carriers Pvt. Limited v. Union of India, reported in [(2011) 269 ELT 222], wherein, the Bombay High Court was dealing with the matter relating to suspension of the license of CHA which was suspended under Regulation 20 (2) of the Regulations and post-decisional hearing was given as well. The suspension order was since passed belatedly, the Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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