TMI Blog2012 (7) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'such orders as he deems fit' after considering the inquiry report and the representation of the CHA, if any - , whether the inquiry report is in favour of the CHA or not, it is the Commissioner who has to pass the final order as he deems fit on the showcause notice issued by the Commissioner - . The argument that under Regulation 22(6), the CHA is required to make representation only to the extent the findings in the inquiry report that are against the CHA cannot be accepted - the Commissioner is empowered to disagree with the findings recorded in the inquiry report and pass such orders as he deems fit and if the CHA is aggrieved by the order of the Commissioner, he is entitled to challenge the said order by filing an appeal. - WRIT PETITION NO.7122 OF 2011 - - - Dated:- 19-7-2012 - J.P. Devadhar, K.K. Tated M.S. Sanklecha, JJ. Mr.V N Ansurkar with Mr D H Nadkarni i/by Legal Solutions for the petitioner. Mr.Pradeep S Jetly for the respondents. ORAL JUDGMENT : (Per J.P. Devadhar, J.) 1. A Division Bench of this Court finding it difficult to agree with the views expressed by another Division Bench of this Court in the case of Commissioner of Customs (Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner relied on a decision of this Court in the case of Rajan Virji Company (supra). As the Division Bench hearing the above Writ Petition found it difficult to agree with the ratio laid down by a Division Bench of this Court in the case of Rajan Virji Company (supra) referred the questions framed by it for being considered by a Larger Bench. Accordingly, the present Larger Bench is constituted. 4. Regulation 22 of the 2004 Regulation reads thus : Regulation 22. Procedure for suspending or revoking licence under Regulation 20. ( 1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent to submit, within such time as may be specified in the notice, not being less than fortyfive days, to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion only against the findings in the inquiry report i.e. only where the findings are against the CHA. Therefore, if the findings in the inquiry report are in favour of the CHA, there is no question of making any representation and consequently there would be no question of passing any order against the inquiry report. Secondly, by relying upon rule 15(2) of the Central Civil Services (Classification, Control Appeal) Rules, 1965, it is argued that wherever the rule making authority thought it fit to permit the Disciplinary Authority to disagree with the findings in the inquiry report, the rule making authority has specifically provided that the Disciplinary Authority shall record its own reasons for disagreeing with the report of the Inquiry Authority and forward the same to the charged person for his comments. Regulation 22 of the 2004 Regulations does not provide any such power to the Commissioner of Customs and, therefore, in the absence of any power to disagree with the findings in the inquiry report, the Commissioner of Customs would be bound by the findings in the inquiry report. Thirdly, by relying upon a Division Bench judgment of this Court in the case of Rajan Virji Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it is the Commissioner who has to pass the final order as he deems fit on the showcause notice issued by the Commissioner. The words 'such orders as he deems fit' in Regulation 22(7) leave no manner of doubt that it is entirely at the discretion of the Commissioner, whether to agree or disagree with the inquiry report and pass such orders as he deems fit on the showcause notice. Where the Commissioner disagrees with the inquiry report, should he record the reasons for such disagreement and forward the same to the CHA for his comments before passing the final order is a totally different question to be addressed while considering the merits of the order passed by the Commissioner. But when Regulation 22(7) expressly empowers the Commissioner to pass such orders as he deems fit, it would not be possible to hold that if the inquiry report is in favour of the CHA, the Commissioner cannot pass an order against the CHA even if the Commissioner disagrees with the inquiry report. 10. The argument that under Regulation 22(6), the CHA is required to make representation only to the extent the findings in the inquiry report that are against the CHA cannot be accepted. Even if the inquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Rajan Virji Company (supra), in our opinion, committed an error in holding that the regulation 22 has been framed on the presumption that the inquiry report under Regulation 22(5) would be implicating the CHA and, therefore, in Regulation 22(6) no provision has been made for the Commissioner to disagree with the inquiry report. Based on the above presumption, the Division Bench in the case of Rajan Virji Company (supra) has held that there is no power or authority with the Commissioner to disagree with the inquiry report. Such an interpretation given by the Division Bench, in our opinion, runs counter to the express words used in Regulation 22(7) to the effect that the Commissioner shall after considering the inquiry report pass such orders as he deems fit. If the Commissioner is empowered under the Regulation to pass such orders as he deems fit after considering the inquiry report, it obviously means that the Commissioner is empowered to take decision contrary to the inquiry report and if the CHA is aggrieved by the decision of the Commissioner, there is remedy of filing an appeal against the order of the Commissioner provided under Regulation 22(8) of the 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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